Probate, Succession, Wills, Estate & Superannuation Planning
Dealing with a deceased estate, or planning your own, involves legal decisions that have lasting consequences for families and businesses alike. Whether you need straightforward advice on making a valid will, assistance administering a deceased estate, or representation in a contested estate matter, Koffels provides clear, practical guidance at every stage.
We act for individuals, families, executors, administrators, and beneficiaries across the full range of wills, estates and probate matters.
Wills and estate planning
A valid, carefully drafted will is the foundation of an effective estate plan. Without one, your estate is distributed according to the intestacy rules under the Succession Act 2006 (NSW) – which may not reflect your wishes or your family’s circumstances.
We advise on and prepare:
- Wills, including straightforward and complex testamentary arrangements
- Testamentary trusts, which can provide tax advantages and asset protection for beneficiaries
- Powers of attorney and enduring guardianship appointments
- Business succession planning for owners of private companies, partnerships, and family businesses
- Advance care directives
Estate administration and probate
When a person dies, their estate must be formally administered before assets can be distributed. For most estates that include real property or significant assets, a grant of probate from the Supreme Court is required to confirm the executor’s authority to act.
We assist executors and administrators with:
- Applications for grants of probate and letters of administration
- Estate administration, including collecting assets, paying debts, and distributing to beneficiaries
- Advice on executor duties and liability
- Reseal of foreign grants of probate in NSW
- Superannuation death benefit claims
- Estate accounts and finalisation
Contested estates and family provision claims
Disputes over deceased estates are more common than many people expect, and the legal basis for challenging a will or making a claim against an estate is more accessible than it might appear.
Under the Succession Act 2006 (NSW), eligible persons – including spouses, children, and in some circumstances other dependants – can apply to the court for a family provision order if they have been left without adequate provision from an estate. The court has broad discretion to make orders regardless of the terms of the will.
Grounds for challenging a will itself include lack of testamentary capacity, undue influence, fraud, and failure to comply with execution requirements. Koffels has written in detail on valid grounds to contest a will in NSW and on family provision claims under NSW law.
We act for both applicants and defendants in contested estate proceedings, including:
- Family provision applications
- Challenges to the validity of a will
- Executor removal and replacement applications
- Equitable claims against estates, including proprietary estoppel and constructive trust claims
- Disputes between beneficiaries
Time limits apply to family provision claims – generally 12 months from the date of death under the Succession Act 2006 (NSW), though the court has discretion to extend time in limited circumstances. If you think you may have a claim, early legal advice is important.
Frequently Asked Questions
What happens if someone dies without a will in NSW?
If a person dies without a valid will, they are said to have died intestate. Their estate is distributed according to the intestacy provisions of the Succession Act 2006 (NSW), which sets out a fixed order of priority for distribution among spouses, children, and other relatives. The intestacy rules do not take into account informal arrangements, de facto relationships in some circumstances, or the particular needs of individuals – which is why having a valid, up-to-date will is important. If no eligible relatives can be located, the estate passes to the NSW Government. Koffels can advise on intestate estates and assist with applications for letters of administration where there is no will.
Who can make a family provision claim against an estate?
Under the Succession Act 2006 (NSW), a family provision claim can be made by an eligible person who has not received adequate provision from a deceased estate. Eligible persons include a spouse or de facto partner of the deceased, a child of the deceased (including adopted children), a former spouse in certain circumstances, and a person who was living in a close personal relationship with the deceased at the time of death. The court considers a range of factors in assessing a claim, including the applicant’s financial circumstances, the size of the estate, the nature of the relationship, and the competing claims of other beneficiaries. Claims must generally be made within 12 months of the date of death.
What are the grounds for contesting a will in NSW?
A will can be challenged on a number of grounds, including that the testator lacked testamentary capacity at the time the will was made, that the testator was subject to undue influence by another person, that the will was the product of fraud or forgery, or that the will was not executed in accordance with the formal requirements of the Succession Act 2006 (NSW). Separately, eligible persons can make a family provision claim even where a will is valid, if they have been left without adequate provision. The grounds, prospects, and practical steps involved differ significantly between these types of challenges. Koffels advises on both.
What does an executor have to do when administering an estate?
An executor is responsible for locating and collecting the assets of the deceased, paying outstanding debts and liabilities (including any tax obligations), applying for a grant of probate where required, and distributing the estate to beneficiaries in accordance with the will. Executors have a duty to act in the interests of the estate and beneficiaries, and can be personally liable for losses caused by a failure to do so. Where the estate is complex, involves a business, or is subject to a dispute, legal advice at the outset is important. Koffels assists executors with the full administration process, from the probate application through to final distribution and estate accounts.
What is a testamentary trust, and should my will include one?
A testamentary trust is a trust established by a will that comes into effect on the death of the will-maker. Rather than distributing assets outright to beneficiaries, the estate is held in trust and managed by a trustee for the beneficiaries’ benefit over time. Testamentary trusts can offer significant advantages, including potential tax benefits where income is distributed to minor beneficiaries, asset protection from creditors or family law claims, and the ability to provide for beneficiaries who may not be well-placed to manage a lump sum. Whether a testamentary trust is appropriate depends on the size and nature of the estate and the circumstances of the beneficiaries. Koffels advises on testamentary trust structures as part of estate planning.
How long does probate take in NSW?
The timeframe for obtaining a grant of probate in NSW depends on the complexity of the application and the current processing times at the NSW Supreme Court. A straightforward application where all documents are in order can take several weeks from filing. More complex estates, or those involving challenges to the will, can take considerably longer. Before applying, there is a mandatory 14-day notice period following the advertisement of the intention to apply for probate. Koffels prepares and files probate applications and can advise on the likely timeframe for a particular estate.