Probate is a document granted by the Supreme Court following a formal court application to confirm that a Will is valid. Probate confirms that the executor has legal authority to deal with the deceased’s assets in accordance with the terms of the Will. Probate also confirms that the Will is the last will executed by the deceased, that it was the deceased’s wishes and nobody elses, and that the deceased had capacity at the time of signing the Will.
Probate may not always be necessary. However, it is always required for administration of estates that involve claims for further provision and/or the collection of sums of money exceeding $30,000.00 – $50,000.00 with one financial institution (the requirements of each financial institution vary).
The correct preparation of a Will is so important because should the Will be prepared incorrectly, Probate may not be granted and therefore the executor will be unable to administer your estate pursuant to your express wishes.
If it is necessary to obtain probate, the engagement of a Solicitor is the most efficient way to make such application.
A Will is a legal document that expresses your wishes for the distribution of your assets after your death. A Will allows you to appoint an Executor, who will be the person responsible for making sure your wishes are met. A Will can also be used to appoint a guardian to care for your children after your demise. Apart from these clear advantages, a Will can also save your estate the expense and could avoid the potential disputes that may arise when a person dies without a Will.
Everyone should have a Will, no matter how nominal or large their asset pool might be. If you don’t have a Will, your assets will be distributed according to the intestacy rules contained within the relevant legislation. The intestacy rules apply to each individual and they do not take into account your personal circumstances or wishes. This could potentially cause unnecessary hardship, delays and costs to the loved family members you leave behind.
A professionally drafted Will to meet your specific wishes is vital in ensuring an efficient distribution of your assets on your death.
In family law property settlements the legislation is quite clear that each party is required to give “full and frank disclosure”. This might sound a bit foreign to most people but the concept is actually quite clear.
To be perfectly clear, what the obligation means is that any document that any party has that is relevant to the property settlement, a copy needs to be sent to the other party.
The obligation is not limited to the documents set out the Family Court Brochure “Pre-action Procedures for Finanical Matters” which sets out a list of documents that may be required in financial matters.
This can be quite an onerous requirement as usually one party to the relationship has a majority of the documents as they have been the one who has taken care of the finances during the relationship.
It is important that any person who is involved in a family law property settlement is conscious of this fact. If parties are not “full and frank” in their disclosure it can lead to premature Court proceedings and in a worst case scenario Orders that you are to pay the other parties legal fees for the Court proceedings.
It is vitally important that when you are asked to bring in all documents, that you use your best endeavours to locate and gather all documents that you have in your possession or control and hand them to your solicitor.
It is always better to provide your solicitor with too much information and let them sort out what is relevant and what is not relevant. That’s what you pay them for!
What is Property
When it comes to determining what is “property” in family law matters, the Family Law Act and the courts interpret the term very broadly. While most people consider “property” as being, the family home, motor vehicle and furniture, the scope is much wider and may include interests in business, shares, redundancy payments, superannuation, inheritances and even assets that you may have acquired prior to your marriage.
At times, when recognising the broad interpretation of “property,” people can make the mistake of thinking that such items in the property pool can be hidden from the other party through the instigation of a company or trust. This is a big mistake.
When it comes to considering “property,” the law is complex.
Accordingly, it is very important to protect your rights and McNamara Law are family law experts and can help you in this regard.
What is Spousal Maintenance
The Family Law Act states that a person has a responsibility to financially assist their spouse if the spouse’s income or assets fall short of meeting their reasonable expenses.
Importantly, this responsibility may well continue for a considerable period after separation and divorce.
In determining the extent of this assistance, both the needs of the person seeking support and the capacity of the other to assist is taken into consideration. This is why when you’re considering separation and divorce, you need to seek legal advice that can assist you in understanding the full potential financial impact.
Can I make an application for divorce while still living under the same roof as my ex-partner?
Divorce Applications can be made while parties have been separated but living under the same roof, or where there has been a period of resuming the relationship and further separation.
I would like to know more about the process
A Divorce Application is filed in the Federal Circuit Court and there is a filing fee payable to the Court. In certain circumstances the Applicant can apply to the Court for a reduction in the filing fee.
Once the Application is filed in the Court, the registry will nominate a Court date.
If the Application is made solely by one party without the other party signing the application, it will need to be served on the other party. Service can initially be attempted either personally or by post, however, if the party being served does not sign and return an acknowledgement of service they will have to be served personally.
If you are the sole Applicant, and there are children under the age of 18, you will need to appear at the Court date. If there are no children under 18 the Court can consider the application on the papers without the need for either party to appear as long as service on the other party has been proved.
If you are a Respondent to an application and have been served with the application, you only need to appear in Court or file material in response of the application if you object to the Divorce being granted.
One month after the Court date the Divorce becomes absolute. The Court then posts the Divorce Order to the parties at their nominated address for service.
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