In the event that you decide to contest the will, your application must be made: Within six months after the date of the grant of probate or administration, OR. Three months from the time you give notice to the estate.
Although there is no official ceremony for the reading of a will in Australia, wills should be read and dealt with within 12 months of the date of the deceased.
In claims under the Inheritance (Provision for Family and Dependants) Act 1975, the time limit is six months from the date of the Grant of Probate or Grant of Letters of Administration. In certain other limited probate actions (mainly those brought by beneficiaries), the time limit to bring a claim is 12 years.
The time limit to contest a will in the Australian Capital Territory is six months from the date of probate. The court can only make an exception under the Family Provision Act 1969 for a late Family Provision Claim if it judges that there is sufficient cause.
There is no time limit in applying for Probate. Unlike some legal processes, such as applying for compensation, your application will not be disqualified because it is late. Nor will you be penalised or fined for late application. However, this does not mean that delay is necessarily safe.
Where the executor has not paid the legacy to the beneficiary within 12 months from the date of death, the beneficiary is entitled to claim interest until the legacy is received.
The Inheritance Act has a strict time limit for making a claim of six months from the date of the Grant of Probate or Letters of Administration. In very exceptional circumstances this may be extended to allow a late claim, but as a rule you must stick to the six month deadline.
Contesting a will is time is worthwhile if you believe you are entitled to more than you received. The process can take an emotional toll but it is important to remember that there can be major long-term benefits of contesting a will.
If the matter goes to court, the average cost to contest a will is about $20,000 – $100,000. Most lawyers charge $300 to $850 per hour. The average cost for a family provision claim in NSW that is finalised is about $30,000. But, if you go to court, the cost can be more than $50,000.
Contesting a will in Australia, by contrast, occurs when someone asserts that they have not received adequate provision in the will. To successfully contest a will, a person must demonstrate financial need, and establish that in light of this need, the deceased should have made greater provision for them.
There is no time limit within which to issue such claims at court. However, the longer a person waits to bring a claim after probate has been granted, the greater the chance that the estate will have been distributed by the executor to the named beneficiaries under the disputed will.
There are a number of different types of decision a judge might come to in these cases. They may decide that the Will is valid and that the executors should continue to administer the estate in accordance with it. They may decide to remove an executor from a Will or appoint a new one.
How long does the executor have to distribute the estate? Generally, an executor has 12 months from the date of death to distribute the estate. This is known as 'the executor's year'.
Finalising the estate
Straightforward estates are often wound up in less than 6 months. Others can take more than a year. It depends on: the complexity of the Will.
It is up to the executor of the estate to inform you that you are a beneficiary. There is no formal will registry that will allow you to check the details of wills. You can only request information about a will if you are a beneficiary of that will.
The usual rule is that the loser pays the winner's legal costs. This is often called the “costs follow the event” principle. It is in the Civil Procedure Rules at rule 44.2(2).
Who pays for the legal costs associated with contesting a will depends on a few factors. If the matter is settled in the mediation process (i.e. before it reaches court), you will receive an agreed-upon amount from the estate. From this, you will need to pay 100% of your legal fees, or Solicitor/Client costs.
Studies have shown that contesting of Wills in Australia has an average of 74 percent of Family Provision Claims in Australia which are successful. The success rate in Queensland is even higher at 77 percent.
In New South Wales, the overall success rate of contesting a will is approximately the same as the national average, about 76 %. As mentioned, NSW also has the highest number of family provision claims in the country and is responsible for around 60 % of all contested estates.
Yes, if you ultimately succeed in proving that the will is invalid, then a will can be overturned after probate. But contesting a will at this stage is complicated, and you risk incurring expensive legal costs if the court finds in favour of the executors.
When it comes to the process of contesting a will, there is no legal requirement for a solicitor to be instructed. There is absolutely nothing stopping someone from dealing with a will challenge.
Can an executor of a will take everything? No. An executor of a will cannot take everything unless they are the will's sole beneficiary. An executor is a fiduciary to the estate beneficiaries, not necessarily a beneficiary.
The simple answer is no. The executor has the authority to hold the assets for a certain time for safe-keeping before distributing it. But he cannot withhold assets for any selfish benefit. In a few rare situations, the fee of an executor exceeds the value of the estate in which case he will have to take everything.
The 5-year rule applies to taking distributions from an inherited IRA. To withdraw earnings from an inherited IRA, the account must have been opened for a minimum of five years at the time of death of the original account holder.