Wills & Estate Beneficiaries FAQs

If you are:

• mentioned in the Will, whether as a beneficiary or not;
• mentioned in an earlier Will, whether as a beneficiary or not;
• a spouse, parent or child of the deceased;
• a person who would be entitled to a share of the estate if the deceased had died intestate (i.e. without a Will);
• a parent or guardian of a minor mentioned in the will or who would have been entitled to a share of the estate if the deceased had died intestate;
• a creditor or other person who has a claim at law or in equity against the estate; or
• a dependant of the deceased who may apply for a maintenance order from the estate,

you are entitled to either inspect or receive a copy of the Will signed by the deceased. Please note the executor may charge reasonable expenses for producing a copy of the Will.

If the executor is refusing to provide you with a copy of the Will, and you feel you fall within one of the above categories, we recommend you contact a solicitor so appropriate action can be taken.

If you are having difficulty locating a beneficiary, you may require the assistance of a solicitor. A solicitor will have access to various search methods that will aid in the search and location of a lost beneficiary and provide you with advice should that beneficiary be unable to be found.

Some searches we recommend you attempt before contacting a solicitor are:

• Completing a residential search of the White Pages;
• Conducting an Electoral Roll search at your local Electoral Office;
• Typing the name of the beneficiary into Google or another internet search engine; or
• Typing the name of the beneficiary into Facebook.

The manner in which a bequest is to be distributed if a beneficiary has passed away will depend upon the language of the Will and the time of death of the beneficiary compared with the deceased. In this regard, if you discover a beneficiary has passed away, we recommend you liaise with a solicitor to review the terms of the Will and advise you on the manner in which the bequest is now to be distributed.

In certain circumstances, a person (whether named as a beneficiary in the Will or not) may be able to pursue what is known as a Family Provision Application. Family Provision Applications are legal proceedings wherein a dependant of the deceased (i.e. a spouse, de facto, child, step-child or adopted child) seeks to have the terms of the Will reviewed if they are of the reasonable opinion that the deceased inadequately provided for them in his/her Will.

You must inform the executor of the estate of your intention to make such an Application, in writing, within six (6) months of the passing of the deceased and file legal documentation to commence your Application within nine (9) months of the passing of the deceased.Should you fail to adhere to the noted timeframes, the executor may proceed with distributing the estate in accordance with the terms of the Will.

We recommend you liaise with a solicitor to determine whether you are eligible for pursuing a Family Provision Application and to discuss the prospects of success of a claim.

It is our recommendation that if you are concerned a beneficiary may file a Family Provision Application, that the assets of the estate not be distributed for a minimum period of six (6) months following the passing of the deceased. If the six (6) month period expires and no notification has been received, you may proceed with distributing the assets of the estate knowing that no action can lie against you for the distribution.

If you, or the beneficiaries of the estate, do not wish to wait the six (6) month period before distributing the assets, we strongly recommend you obtain the written consent of each beneficiary (provided they are over the age of 18 years and are able to consent) which:

• Consents to the distribution; and
• Confirms they do not intend to make any application that would affect the proposed distributions.

Upon receipt of the consent documents from each of the beneficiaries, you may proceed with the distribution knowing you have minimised any prospect of a claim being brought against the estate.  It is strongly recommended, however, that you speak with a solicitor before distributing an estate early to ensure all potential claims for family provision have been considered.

If you receive notification of a proposed Family Provision Application, it is our recommendation that you withhold distributing the assets of the estate. We further recommend you liaise with a solicitor to discuss the contents of the notification and determine an appropriate course of action to respond.

If a beneficiary is bankrupt, they are obligated to notify the Australian Financial Security Authority of the bequest. A representative of the trustee will then contact you directly to discuss the manner in which the bequest is to be paid. The Authority will never liaise with you via the beneficiary nor will the Authority request that payment be made directly to the beneficiary for on-forwarding to the Authority.

If you have not been contacted directly by the Authority, we recommend you personally contact the Authority to inform them of the bequest.