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Time Limits To Make A Claim According To Probate Lawyers Sydney

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The law changes in relation to the time to make a claim however as at the date of this article and with the guide of probate lawyers Sydney, the time limits are indicated below:

If the deceased passed away before 1 March 2009, the claimant had 18 months from the date of death to make a claim.

If the deceased passed away after 1 March 2009, the claimant has 12 months from the date of death to make a claim.

Claiming against a deceased estate?

A claim against a deceased's estate is called a Family Provision Claim.

This is an application to the court to seek adequate provision from a deceased person's estate.

The application is made to the Supreme Court.

Eligible persons.

  • A wife or husband
  • A de facto spouse
  • former wife or husband
  • a child
  • a person who was wholly or partially dependent on the deceased AND who was a grandchild of the deceased OR was a member of the deceased's household at the time he or she was wholly or partially dependent on the deceased
  • A person who was living in a close personal relationship at the time of the deceased person's death.

If you satisfy the above then the next step is to consider a number of factors before the court determines you should receive adequate provision from the deceased's estate.

If a person intends to make a claim against an estate it is important to obtain legal advice from an experienced probate lawyers Sydney who is familiar with the process and requirements to take on the case.

The factors the court takes into account are set out in legislation. The factors are set out in the Succession Act 2006. Below is an extract of such factors:

The relationship with the deceased
- (For example:whether the relationship was estranged or hostile).

Duties of the deceased
- (For example: whether the deceased had an obligation to support the claimant and failed to do so).

Financial position of the deceased's assets and property
- (For example:whether the deceased had substantial or little assets and property)

Financial position of the person making the claim
- (For example: whether the claiman had substantial or little assets and property)

Physical or intellectual disabilities
- (For example: whether the claimant is impaired and suffers from medical condition)

Age
- whether the deceased already gave the claimant money or assets during the deceased's lifetime amongst other factors.

In order to make a claim you will need to obtain legal advice from a lawyer who will act on behalf of the claimant and handle the proceedings form start to finish.

A lot of cases settle at mediation without having to go to trial and avoid the stress and anxiety a claim may bring.

Before the matter goes to court, the claimant lawyer will contact the lawyer acting on behalf of the estate. This lawyer represents the executor on behalf of the estate.

The claimant's lawyer will try and resolve the matter to avoid court proceedings and try and reach a settlement between the parties. The lawyer for the claimant should try and mediate (if this is viable) to try and resolve the matter in a quick, efficient and expeditious manner.

If the matter is resolved, the parties can sign an agreement which is often referred to as a Deed of Family Arrangement'.

The Deed sets out the agreed amendments to the deceased's will. The deed effectively changes the will.

It is very important to contact a lawyer to prepare this document.

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