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"James was able to assist with my parents’ Will dispute. Even though he is in Brisbane and I am on the Gold Coast, it was easy to communicate and put our case together. James always responds quickly, is very efficient and continues to keep me well informed of any progress. I have no hesitation in recommending James." [Will dispute - Qld]
Excellent knowledge and clear communication. Understood my position. Communicated my legal position thoroughly and clearly. Gave great logical advice.
Best solicitor I have come across. Highly recommend. James has guided me all the way, has great communication skills, is very professional, quick to respond, and is very qualified. I am overall very happy with the service provided, and I would highly recommend this firm for anyone looking for a good lawyer.
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An up-and-coming, innovative firm that does things differently. Blue Ocean takes an interdisciplinary approach to its personal + commercial law practice to ensure you’re getting what you + your company needs. It has a growing list of [200+] automated 24/7 personal + business legal documents with Embedded Lawyer-Logic™ …
"Between October 2013 and 7 January 2016 James D. Ford assisted 1600 satisfied paying clients with their online queries about all aspects of Australian Law (with a 98.7% positive feedback rate)." [Australian Law]
Letters of Administration are a legal document that authorises a family representative to manage the estate of a deceased person in accordance with legislation (where the deceased has died intestate, ie., where a Will cannot be located).
If a person passes on without a Will leaving assets in NSW, the family representative may need to apply for Letters of Administration to deal with the estate left behind.
Letters of Administration is a document issued by the Supreme Court of NSW enabling the family representative to deal with the deceased's assets.
Letters of Administration are proof that the person named in the letters is legally entitled to collect and distribute the estate of the deceased.
For example, it allows the deceased's money held in banks, managed funds etc, to be collected, their debts to be paid, and their real estate to be sold or transferred.
This legal document kit can be used where the Family Representative is the deceased's:
✅ Spouse (or de facto spouse); or by a
✅ Child of the deceased (where no spouse or de facto spouse is alive).
This legal document kit is not suitable if the deceased left:
❌ Multiple spouses (a spouse and de facto spouse or multiple de facto spouses), including where the deceased has;
❌ A child with two or more people.
To confuse matters Letters of Administration can also be granted CTA (cum testament annex), that is, with a Will attached.
❌ This legal document kit is not designed to cover a Letters of Administration CTA situation, so if it applies we recommend you contact our legal team for assistance.
This is an unusual situation as generally it is assumed that when an Administrator is appointed there is no Will.
For this to occur, the Will needs to be incomplete, such as is the case where:
❌ No Executor is named; or
❌ The appointed executor has since become incapacitated, or does not wish to act as executor.
It is not always necessary to apply for Letters of Administration or a Grant of Probate when someone passes away.
Often it will depend on what assets have been left behind by the deceased, and the requirements of bank or financial institutions holding those assets.
It is always recommended in the situation where the estate does not hold any real estate, that an enquiry be made directly with the banks, etc. holding funds to understand whether or not their standard policy allows for the release of the funds held without the need to first obtain Grant of Probate/Letters of Administration.
Generally each bank or financial institution will set thresholds amounts above which they will insist that Grant of Probate/Letters of Administration are required prior to release of the funds.
Below the bank or financial institution's specifically set unique threshold amount (set at their own discretion) they may release the funds without the need for formal Grant of Probate/Letters of Administration.
It is important to understand that Grant of Probate/Letters of Administration also serve as legal authority issued by the Supreme Court which provides indemnification for the Family Representative so long as they act in accordance with the Grant of Probate/Letters of Administration.
If an Estate is distributed without Grant of Probate/Letters of Administration the Family Representatives must be careful to ensure they do not make mistakes which could triggers the possibility of personal liability should estate assets be distributed and subsequently beneficiaries find a Will or challenge the validity of the distribution of the estate, etc.
Before lodging a summons for Administration NSW with the Court, you must at least 14 days prior, publish a NSW Letters of Administration Notice (a.k.a NSW Death Notice), in other words a Notice of an Intention to make Application for Letters of Administration.
Before publishing an Online NSW Letters of Administration Notice (a.k.a NSW Death Notice) you should use the free public search by the name of the estate to determine whether there is an existing NSW Probate Notice (a.k.a NSW Death Notice), that is a Notice of an Intention to make Application for a Grant of Probate.
Once you have confirmed there is no competing or duplicate application, you can proceed to publish an Online NSW Letters of Administration Notice / (a.k.a NSW Death Notice).
From 1 July 2021, the fee applicable to publish the Online NSW Letters of Administration Notice (a.k.a NSW Death Notice) is $48.
The following documents will be generated:
⚖️ Summons for Administration;
⚖️ Affidavit of Applicant for Administration;
⚖️ Inventory of Property;
⚖️ Grant of Letters of Administration document;
Where the deceased's de facto spouse is applying or not all of the children of the deceased are applying:
⚖️ Consent to Administration;
Where the applicant was in a de facto relationship with the deceased:
⚖️ Affidavit as to Defacto Relationship; and
Where the deceased had no de facto spouse:
⚖️ Affidavit that Deceased was not in a Defacto Relationship.
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Re-Enter the code at checkout each time you buy the following documents to get a discount:
Whilst it is acknowledged that the legal document templates provided by the majority of [non law-firm] Australian legal document providers will generally have been prepared by lawyers and that the templates they sell are updated from time to time as required by legislative changes.
This does not change the fact that you are not dealing directly with a law firm.
🧩 If and when you have a legal question?
🧩 If the other party wants to negotiate amendments to the legal document?
🧩 If the legal document does not meet all of the requirements of your specific facts and circumstances?
🧩 If there is a mistake in the legal document?
Lastly, what happens if you are not directly involved in the creation of the legal document?
🧩 What if your accountant, tax agent or financial advisor uses a [non-law firm] online legal document service on your behalf?
To help you answer this question, please read our FAQ: If I create a legal document for my client on your law firm’s website am I giving legal advice or am I a "mere scribe"?
A general answer is that online [non-law firm] Australian Legal Document providers are unable to assist clients directly, as they are unable to provide legal advice.
Certain [non-law firm] providers have adopted a business model whereby they earn a substantial ongoing 12 months+ plus referral fee for directing a client to a large directory of law firms who can assist.
This referral fee is charged to the law firm, who may decide to expense it as a marketing cost.
We submit that one way or another, it is ultimately the client who pays for the cost of the referral fee as it increases the cost of doing business for the law firm providing the service to them.
The valuable feedback we have obtained is that:
❌ The quality of the online legal documents are basic, non-adaptive templates; such that
❌ The client is more often than not, required to seek assistance from a law firm in order to ensure their legal requirements are met.
As lawyers are required to undertake client interviews and make manual amendments to the legal documents, the final cost ends up much higher than the client could have anticipated, especially when the original online legal document was given away for free or at a nominal cost.
These kinds of business models may not rise to the level of bait & switch, however they may be found to constitute misleading and deceptive conduct.
In our submission, clients appear to be lead to believe that in the majority of cases they will be able to use the standard online documents without the need to engage a law firm to assist, when in actual fact this is not the case.
When you purchase online legal documents directly from us, we have every incentive to ensure the quality of the online legal documents provided are as high as possible, and that you have all your questions answered.
List of Benefits:
✅ Our law firm already has a copy of your online responses so we can assist quickly and cost effectively.
✅ 1-stop shop. There is no need to wade through a directory of different law firms each time.
✅ Professional Indemnity Insurance (when you engage us for legal advice);
✅ Higher quality automatically tailored legal documents using Embedded Lawyer-Logic™;
✅ Deal directly with a law firm, no need for middlemen;
✅ No referral fees built into the business model;
✅ Lower overall legal costs;
✅ Legal document delivered directly from our .law web domain so you know we created the legal document;
✅ Legal Professional Privilege; and
✅ Enhanced Confidentiality.
Credits:
This FAQ was created by James D. Ford GAICD | Principal Solicitor, Blue Ocean Law Group℠.
Important Notice:
This FAQ is intended for general interest + information only.
It is not legal advice, nor should it be relied upon or used as such.
We recommend you always consult a lawyer for legal advice specifically tailored to your needs & circumstances.
Our Legal Health Check is a process that helps you identify + prioritise your individual + business (if relevant) legal needs.
1️⃣ Complete our Intelligent Questionnaire:
You will be asked to provide information about your personal and/or business circumstances;
2️⃣ Automated Report:
The process uses inbuilt Embedded Lawyer-Logic™ to help you identify key legal risks + concerns and prioritise solutions.
A customised (jargon-free) report is generated in plain english with actionable recommendations.
3️⃣ Deliver Solutions:
You can then consider the information in your own time, and when convenient, select the most appropriate self-service legal documents from our online 24/7 portal or reach out to our legal team to discuss your options in more detail.
🧩 Estate planning;
🧩 Marriage and de facto relationships;
🧩 Tax structuring;
🧩 Dispute avoidance/resolution;
🧩 Investment properties;
🧩 Business sale/purchase;
🧩 Business financing;
🧩 Co-ownership arrangements;
🧩 Managing staff;
🧩 Commercial terms;
🧩 Websites and intellectual property;
🧩 Regulatory compliance.
This is an amazing way to quickly + proactively identify legal risks + opportunities to get your legal affairs in order!
Our Buccaneer Package is designed for individuals + includes our constantly expanding library of [Self-Service] personal legal documents.
It is compelling value with pricing at less than $1 per day which entitles you to access heavily discounted [members only] prices.
You could save thousands $$$ on your legal bills!
Our Yachtsman Package designed for business owners includes our constantly expanding library of [Self-Service] personal + business legal documents.
It is compelling value with pricing at circa $3.50 per day [equivalent to the price of a cup of tea or coffee!] which entitles you to access heavily discounted [members only] prices.
You could save thousands $$$ on your personal + business legal spend!
Credits:
This FAQ was written by James D. Ford GAICD | Principal Solicitor, Blue Ocean Law Group℠.
Think of Embedded Lawyer-Logic as your way of gaining 24/7/365 access to the best legal minds in the relevant area of law to guide you through complex legal matters via one of our Legal Wizards +/or to instantly generate high quality legal documents, or an initial draft for review by our legal team.
More than 1000+ Australian lawyers use the same Industry leading Legal Document Platform to automatically generate high quality legal documents.
Our intelligent online questionnaire adapts to your answers and only asks relevant questions.
Simply follow the guidance and enter the requested information about your matter.
If you are using one of our Legal Wizards there may or may not be a document to be automatically generated.
The information is then sent to our back-end legal document generation engine, which follows a matrix of algorithms to make decisions about what should be in your legal document, just as an expert human lawyer would do.
The engine then draws from an enormous body of content to assemble a top-tier quality legal document that’s tailored to your situation + requirements.
Our Embedded Lawyer-Logic™ technology includes numerous quality control checks + automatic error-correction, massively reducing the risk of human error.
The finished document is then emailed to you in PDF format, ready to print and sign.
Your answers to the online questionnaire and a copy of the finished document in both Word + PDF formats are automatically forwarded to our legal team.
If we notice anything out of-the-ordinary we will contact you to discuss.
If you are a subscribed member or opt for paid Lawyer-Assistance, we will use the allocated time to assist to clarify and resolve any questions you may have.
If your matter is complex, high risk or you have never been involved in legal matters before, we highly recommend you opt for our Full Service.
Our legal team will contact you and assist you throughout the entire process.
If you are a subscribed member the cost for the time spent by our legal team to assist you is heavily discounted.
Credits:
This FAQ was written by James D. Ford GAICD | Principal Solicitor, Blue Ocean Law Group℠.
Our [Self-Service] legal documents are designed to be completed "without the intervention of a lawyer".
This approach will be appropriate for the majority of routine legal matters, where you are experienced and have learnt what needs to be considered and have gained experience in using our 24/7 online document portal to generate your legal documents instantly.
Some routine matters maybe totally new to you (meaning that you will have questions and we recommend you select our [Lawyer-Assisted] service).
Other matters maybe unusually complex, or of such high-value or risk that involving our legal team is the prudent course to take.
For these matters we recommend you select our [Full Service] option.
Credits:
This FAQ was written by James D. Ford GAICD | Principal Solicitor, Blue Ocean Law Group℠.
⚖️ Professional Indemnity (Limited Liability) by a scheme approved under Professional Standards Legislation;
⚖️ Access to Professional Fee Funding* / Disbursement Fee Funding / Family Law Funding (subject to approval by QuickFee our external legal finance provider);
✅ Allocated Time included to understand your circumstances + objectives, answer your queries + provide legal advice & make recommendations regarding alternative/additional options; and
✅ Create your standardised Legal Document based on your instructions.
⚖️ Use of proprietary fonts to maximise fraud prevention;
⚖️ Use of our Law Firm Letterhead;
➲ Send your Legal Document for electronic signature/s; and/or
🔒 Application of Trax Print Legal Document Security Technology for Fraud + Litigation Prevention.
* More Information about Professional Fee Funding:
Credits:
This FAQ was written by James D. Ford GAICD | Principal Solicitor, Blue Ocean Law Group℠.
The following has been extracted from a JScape's website article answering the question: "Should we start using 4096 bit …?"
In case you're curious where we got the idea of 2048-bit encryption keys being safe to use until 2030, check out the NIST Special Publication 800-57 Part1.
In Table 2 of that document, it says 2048-bit RSA keys are roughly equivalent to a Security Strength of 112.
Security strength is simply a number associated with the amount of work required to break a cryptographic algorithm.
Basically, the higher that number, the greater the amount of work required.
A future proof security solution can mitigate the risk of cyber threats.
We know that cyber criminals are always one step ahead of security professionals, so we're not 100% sure 2048-bit keys are going to remain unbreakable before 2030.
It was once said:
It would take the combined processing power of every computer in the world thousands of years to crack 4096-bit encryption.
Hackers will always look for the weakest link, which is usually a person who makes an error which opens up a gap in an otherwise secure system.
In a more general context (outside of encrypted secure website traffic/data) it has also been said:
Data with 4096-bit encryption (only protected by a password) could still be compromised within seconds.
How? Human error.
Easy pass-phrase, written down password, re-used password... etc. basically, always be on the lookout for the weakest link.
Trust the technology, but never trust the weak link - the user!
Credits:
This FAQ was written by James D. Ford GAICD | Principal Solicitor, Blue Ocean Law Group℠.
⚖️ *.law is a top-level-domain (TLD) that aims to:
Promote trust in the professional legal community by creating a:
✅ Verified;
✅ Exclusive; and
✅ Reserved online space in which only accredited lawyers and law firms can establish a comprehensive digital brand.
✅ Website users can have confidence they are dealing with an authorised and licensed lawyer/law firm.
✅ *.law offers effective branding to those in the legal community, with the ability to secure a domain name that clearly communicates who you are + the legal resources you provide.
Source: join.law - Why *.law?
If your role is merely that of a "scribe or scrivener" as outlined below it is unlikely you would be deemed to be providing legal advice or engaging in the practice of law.
Unfortunately this is not as easy as it once was … when online legal document templates were all static "fill in the blanks" one-size-fits-all templates.
Increasingly, the capabilities + complexities of legal document automation have evolved to cater to an ever widening range of facts and conditions.
Using the complex design + incorporation of what we call Embedded-Lawyer Logic™ it is no longer possible to avoid the automated tailoring of the online legal document to suit the client's circumstances + legal needs.
They are designed to produce a quality bespoke legal document just like a lawyer does.
The use of Embedded-Lawyer-Logic™ in the online process:
✅ Is now very similar to a client being interviewed by a lawyer;
✅ It drills down to ask the same questions and provide the same options a highly experienced + competent lawyer is required to do.
As a result the draft legal document created now has the potential to vary significantly based on the responses provided by the client.
We have now progressed to the point that the new normal online process is designed to cause your role to fall outside of the role of a "scribe or scrivener" alluded to below.
In the leading case on this issue Legal Practice Board v Computer Accounting and Tax Pty Ltd [2007] WASC 184; 35 WAR 59 (Simmonds J) noted at para. [152] that Brinsden J in Barristers Board v Palm Management Pty Ltd [1984] WAR 101 referred to Re Matthews (1938) 79 P 2d 535, apparently with approval, as follows at para. [108]*:
The court went on to say that where an instrument is to be shaped from a mass of facts and conditions, the legal effect of which must be carefully determined by a mind trained in the existing law in order to ensure a specific result and to guard against others, more than the knowledge of the layman is required and a charge for such services brings it definitely within the term 'practice of the law' [emphasis added].
Therefore, we strongly recommend that you advise your client to either:
✅ Create the draft legal document themselves + ensure independent legal advice is sought from our legal team prior to negotiation and execution; or
✅ Instruct you to create the legal documents using our Lawyer-Assisted option.
Doing this ensures your role is clearly limited to that of a "scribe or scrivener".
Our legal team will then take the responsibility for reviewing your client's individual circumstances together with the draft legal document in order to provide your client with the relevant legal advice, ensure your client understands their legal position and options, and to propose and make any required amendments to the legal document based on your client's instructions.
In Legal Practice Board v Computer Accounting and Tax Pty Ltd [supra]*:
… the court held that work of the mere clerical kind, such as filling out of skeletal blanks or drawing instruments of generally recognised and stereotype forms effectuating the conveyance or encumbrance of property, such as a simple deed or mortgage not involving the determination of the legal effect of special facts and conditions, should be generally regarded as the legitimate right of any layman because it involves nothing more or less than the clerical operations of the now almost obsolete scrivener (emphasis added).
(The scrivener was eliminated in England by the 1804 Act.).
The 2007 case of the Legal Practice Board v. Computer Accounting and Tax Pty Ltd* serves as a timely reminder to members that there are legislative provisions in each state and territory which prohibit a person who is not a legal practitioner from engaging in legal practice.
This prohibition is mirrored in the Institute’s regulations relating to public practice (regulation 1207).
However, there are differences between the jurisdictions as to how the prohibition is framed.
Even so, members who use the services of document providers are urged, as a minimum, to:
✅ Use only reputable document providers whose services are backed by competent legal practitioners;
✅ Ensure that they abide by the terms and conditions of the document providers as to the use of the documents and their supply to clients; and
✅ Avoid redrafting of documents to suit the circumstances of individual clients, unless appropriate legal advice is obtained by the relevant parties.
The Institute believes that the recent WA case does not require any change to a member's legitimate use of this type of service in accordance with their terms and conditions.
However, if you have any concerns or queries about the use of document providers, you should seek legal advice.
Sources:
* Legal Practice Board v Computer Accounting and Tax Pty Ltd [2007] WASC 184;
^ Extracted from the article: Court case raises issues about preparation of legal documents.
Credits:
This FAQ was created by James D. Ford GAICD | Principal Solicitor, Blue Ocean Law Group℠.
Important Notice:
This FAQ is intended for general interest + information only.
It is not legal advice, nor should it be relied upon or used as such.
We recommend you always consult a lawyer for legal advice specifically tailored to your needs & circumstances.
Note: You can find the Trax Print QR Code on the bottom of the first, last or every page, depending upon the preference set by the author of the document.
✅ By way of example, Double-Click on the below sample Trax Print QR Code within the PDF document:
You will be taken to the TraxPrint.com website and a message similar to the following will appear:
The ability to email a document for automated verification has never been done before.
✅ Send an email with the PDF document attached to check@blueocean.law
The Trax Print system checks the Trax Code and compares the entire document to the one that was originally protected.
Trax Print will detect even a one pixel difference within a 1000 page document.
❌ If the PDF document is not authentic a reply email rejecting the document will be send back to you.
If the PDF document is authentic, you will receive a reply email with the following attached:
✅ Certificate of Authenticity (including our law firm details & the timestamp of when the document was Trax Print Protected); +
✅ The Original Trax Print Protected document.
🌊 Email check@blueocean.law with any random PDF document attached (that is not Trax Print Protected).
🌊 Then send a second separate email to check@blueocean.law with one of our Trax Print Protected PDF's attached.
For example:
🌊 Download our Trax Print Protected Brochure called Business Legal Essentials + attach it to your email.
🌊 In both cases you will automatically be emailed the results!
Note: Blue Ocean Law Group are also notified if one of our Trax Print Protected Documents is verified.
This enables us to take appropriate action if the verification was not authorised.
✅ Download the free Trax Print App from the iOS AppStore or Android GooglePlay
Register + Sign-in to the App then ✅ Scan the Trax Print QR Code to Verify.
✅ Drag n' Drop the PDF Document File into the designated area.
You will receive an instant response regarding the authenticity of the document.
This feature is coming soon and we aim to make it available via a dedicated page on our website.
Further Reading: Are your Legal + Identity Documents Securely Trax Print Protected to Provide Fraud + Litigation Prevention? ➲ It's a no-brainer!
Credits:
This FAQ was created by James D. Ford GAICD | Principal Solicitor, Blue Ocean Law Group℠.
Important Notice:
This FAQ is intended for general interest + information only.
It is not legal advice, nor should it be relied upon or used as such.
We recommend you always consult a lawyer for legal advice specifically tailored to your needs & circumstances.
The below iPhone 12 screen shots demonstrate what we mean by "^anywhere (even from your mobile phone, if necessary)".
Credits:
This FAQ was created by James D. Ford GAICD | Principal Solicitor, Blue Ocean Law Group℠.
Important Notice:
This FAQ is intended for general interest + information only.
It is not legal advice, nor should it be relied upon or used as such.
We recommend you always consult a lawyer for legal advice specifically tailored to your needs & circumstances.
Per stirpes means “by branch” in Latin, but is commonly understood to mean “by the bloodline.”
If your estate is distributed per stirpes after your death, each branch of your family will receive an equal share of your estate.
Imagine that Amy has three children: Brigid, Charles, and David.
At Amy’s death, all three children will receive one third of Amy’s estate ➲ if her estate was set up to pass per stirpes.
Assume that Brigid predeceased Amy, and that Brigid has two children, Eleanor and Fergus.
Now at Amy’s death, Charles and David will still receive one third of the Amy’s estate.
Eleanor and Fergus will each share in what would have been Brigid’s share, so both Eleanor and Fergus will take one sixth of Amy’s estate.
These legacy latin legal terms, whilst initially confusing, are very important and can change your childrens' (+ their heirs') inheritance.
The alternative to "per stirpes" is "per capita".
With "per capita" the share of any child beneficiary who dies before you is shared equally among your surviving children ... which means your predeceased child (and consequently, their heirs) would lose their share.
With "per stirpes", in the same scenario, instead of your predeceased child losing their share, it is preserved for their children (if any).
Additional Note:
If the term "per capita by representation" is used (also known as modern per stirpes, American per stirpes), please note that this changes the result of the “per capita" distribution so that it operates the same way as the traditional "per stirpes" distribution described above.
The use of this legal term invokes the concept of a “right of representation”.
This means the heirs of any child beneficiary who predeceases you have the right to representation so they can collect the property originally-intended to go to any predeceasing child beneficiary, so they don't lose their share.
Credits:
This FAQ was written by James D. Ford GAICD | Principal Solicitor, Blue Ocean Law Group℠.
Important Notice:
This FAQ is intended for general interest + information only.
It is not legal advice, nor should it be relied upon or used as such.
We recommend you always consult a lawyer for legal advice specifically tailored to your needs & circumstances.
➲ A person appointed by the Supreme Court to administer a deceased estate when the deceased has not left a Will, or if they have for some reason the nominated executor is unable to or does not wish to act.
➲ When "cta" is appended to Administrator, an abbreviation of the Latin phrase cum testamento annexo is being added which translates to mean that the Grant of Administration / Letters of Administration is being made "with the Will annexed".
This is an unusual situation as generally it is assumed that when an Administrator is appointed there is no Will.
For this to occur, the Will needs to be incomplete, such as is the case where:
❌ No Executor is named; or
❌ The appointed executor has since become incapacitated, or does not wish to act as executor.
When either of the above occur, an application may be made to the Probate Court to appoint someone else.
If the Probate Court approves the application, it grants what is called "Letters of Administration with the will annexed", sometimes written as "Letters of Administration cta’".
➲ An Affidavit is a sworn or affirmed written statement, that is made on oath by a person setting out the facts relevant to their case.
The person making the Affidavit (called a deponent) must swear or affirm that everything said in it is true before a person authorised by law to administer oaths.
Making a false statement in an Affidavit may subject the deponent to perjury charges.
➲ When an Affidavit is used to support an application to the Court.
➲ Related by marriage.
➲ To attach, add or append.
➲ Latin term referring to when people die together at the same time, and it is uncertain as to who died first.
➲ Latin term meaning all of the following: "shared blood" or a blood relationship, people who have descended from a common ancestor, the same blood line.
Can be distinguished from a Relationship of affinity, which is being related to someone by marriage.
➲ All the property (both real estate + personal property) a person owns in their sole name when they die.
The estate of a deceased person is what the deceased has left, whether by their Will or under the statutory rules on Intestacy (applied when there is no Will).
➲ An agreement (usually made in the form of a Deed) which sets out how property in the family is to be distributed.
➲ The passing of rights, property from one person to another on the occurrence of an event, for example death.
➲ The Probate Court has the power to dispense with the traditional formalities required by law to make a valid Will.
This allows the Probate Court to exercise their discretion to Grant Probate for a document which supposedly expresses the deceased person’s testamentary intentions, but which for some reason they hadn’t signed, and/or witnessed, according to the traditional formalities required by law.
➲ Meaning a person who acted "as if" they were the legally appointed Executor/Administrator, when they were not.
The Latin term "de son tort" means "of his/her own wrong".
The person who does this is liable to account to the beneficiaries and creditors of the deceased estate for any losses caused by their actions.
➲ Records of all financial transactions during the period of administering the deceased’s estate must be kept by the Executor/s.
When the administration has been completed the Executor/s then provide each beneficiary with a copy of the financial statements.
➲ See Probate.
➲ Documents which are used to commence legal proceedings in a court.
➲ When a Will does not effectively dispose of all of the deceased’s property, or the Will is ambiguously worded such that part of the estate is not capable of being dealt with effectively.
➲ A process by which the Will or a document alleged to be the Will of a deceased person is proven to be valid according to law.
A Grant of Probate is an official document certified and issued by the Probate Court as evidence that the Court has recognised and confirmed the authority of the person/s named as Executor/s to go ahead and deal with the deceased estate according to the deceased’s Will, and distribute their assets and property, both real and personal.
Grant of Probate must normally occur before the Executor/s can obtain title to the property forming the deceased estate, that is before “calling in ” the deceased’s assets.
If there is no Will the deceased has died Intestate and in such circumstances an Administrator is appointed and instead of a Grant of Probate they are granted Letters of Administration / Administration.
➲ The Probate Court is a specialist division of the Supreme Court, in each state and territory.
➲ A term more commonly used to refer collectively to Grants of Probate or Administration.
➲ If a deceased had assets in different states of Australia or in certain countries, namely Commonwealth countries where the Queen is the head of state, then it is generally possible to have a Grant of Probate issued by a Court in one jurisdiction recognised in another state or country.
This process of recognising the grant made in the other state or country is called resealing the grant.
NSW Reseal of Probate example:
Not all Grants from other countries can be resealed by the Supreme Court of NSW.
The Probate Court will only reseal Grants made in countries of the "Commonwealth Realm" where the Queen is, or was at the time of the grant, Head of State.
Such countries include the United Kingdom (England, Scotland, Wales and Northern Ireland), New Zealand, Papua New Guinea and Solomon Islands.
Recent grants from the following countries cannot be resealed: Malta, South Africa, Pakistan, India, Sri Lanka, Fiji, Hong Kong or The Republic of Ireland.
If a grant cannot be resealed then it may be necessary to apply for a new Grant of Probate in NSW.
➲ Sometimes a Grant of Probate cannot be made because there is some issue or dispute about the Will.
Once the issue / dispute has been resolved by the Probate Court it may then issue a Grant of Probate in solemn form.
The words "solemn form" indicate that Court proceedings have taken place and the dispute is now resolved.
