a) The married spouse or civil partner (including unmarried partner);

b) Children or grandchildren;

c) Parents;

d) Siblings of the whole blood or their children or grandchildren;

e) Siblings of the half blood or their children or grandchildren;

f) Grandparents;

g) Aunts and uncles of the whole blood or their children or grandchildren;

h) Aunts and uncles of the half blood or their children or grandchildren.

To find out more about how the rules of intestacy operate, click here for more information.

The post Is an unmarried partner entitled to receive anything from the estate under the rules of intestacy? appeared first on Wills & Inheritance HQ.

The contributor to a superannuation fund is usually entitled to nominate a third party to receive the benefits due after the contributor’s death. This nomination is often not binding on the trustee of the superannuation fund and is merely a declaration of the contributor’s wishes.

Although the trustee of the superannuation fund has full discretion to distribute the benefit to whomever they feel is most deserving, in practice the trustee will usually honour the nomination.

A trustee will usually consider two (2) key factors in deciding how to distribute the benefit:

• What the contributor wanted and who was nominated by the member to receive the benefit; and
• Who had a financial reliance on the member when he/she died.

Each superannuation fund will have different internal rules as to how a benefit is to be paid out and how such a decision can be contested. If you feel that the trustee of the fund has wrongly distributed the benefit, you should contact the trustee of the fund as soon as possible.

A trustee of a superannuation fund must usually distribute the pension scheme within two (2) years of the date of the deceased’s death.

If no nomination was made by the deceased and no satisfactory beneficiary can be found, the superannuation benefit will usually be given to the deceased’s executor for distribution with the remainder of the estate.

Binding Nominations

However, especially in the case of the larger public funds, it is possible for a contributor to make a binding nomination and then the trustee is bound to distribute the benefits in accordance with the contributor’s wishes.  There are special rules applicable to binding nominations, and so you should consider legal advice if the issue is important to you.

For most funds except for self-managed superannuation funds, it is possible to apply to the Superannuation Complaints Tribunal if you are unsatisfied with the decision of the trustee.  The complaint itself is a legal document and you may be best to get legal advice to give your complaint the best chance of a successful decision for you.

Self-Managed Superannuation Funds

If the superannuation fund is a self-managed (private) fund the rules working out how a fund should be distributed can be much more complicated, and you may have more rights than you think, especially if the trustee has not acted in accordance with the rules.

A lawyer can assist you in liaising and negotiating with the trustee of any type of fund and assisting with any complaint.  Select one who is well experienced in superannuation funds.  CWPL.

The post Will I receive my spouse/civil partner or unmarried partner’s superannuation? appeared first on Wills & Inheritance HQ.

If you and the deceased owned your house jointly, it is said that the property was owned as ‘joint tenants’. Where one joint tenant dies, the share of the deceased person will automatically pass to the other joint tenant. The property will then be owned solely by the surviving joint tenant. In this case, you will not lose your house under the rules of intestacy.

However a joint tenancy will not protect the house from a claim by another person who makes a family provision claim in NSW.

It is very common for couples to hold their home and bank accounts jointly. You should check whether you and your partner hold property in this way as soon as possible.  Do a title search or ask your bank.  You should get jointly owned property transferred into your own name as soon as possible. Click here for more information.

If the house was owned in the deceased’s name only, then it will be distributed in accordance with the rules of intestacy even if you are currently living in it, and you will have no claim to the house under the intestacy rules.  You should obtain immediate legal advice as to your right to commence a family provision claim.

However, if you contributed directly to the purchase of the home, paid for substantial improvements or renovations to be done to the home, or you have been helping to pay the mortgage on an ongoing basis, then you may be able to bring a claim in court to protect this interest that you have in the property. This interest is usually referred to as an “equitable interest”.

In these circumstances, a court may recognise your rights and interest in the property by finding that the deceased held the property on trust for both of you.

You may also have an interest in the property if the deceased led you to believe or encouraged you to believe that you would inherit the property after their death. You will only be successful in a claim of this kind if you suffered detriment, meaning loss or damage as a result of the deceased’s conduct towards you, in such a way that it would be unfair for the deceased to change his / her mind. In such a situation, the court may prevent the property from being dealt with, without your rights or interest being recognised first.

As discussed above, if you were successful in a family provision claim under the Act, the court could order that the deceased’s house or the deceased’s share in your house could be transferred to you.

These are complex areas of law and we strongly recommend that you obtain legal advice.

The post Will I lose my house? What if I have helped to pay the mortgage or been told that I would inherit the house? appeared first on Wills & Inheritance HQ.

Reasonable financial provision means such financial provision as is reasonable in all the circumstances of the case and sufficient for your maintenance. This means an amount that is sufficient to enable you to live comfortably and decently according to the standard of living that you have become accustomed to during the deceased’s lifetime.

An unmarried partner will usually receive less than a spouse or civil partner, as the laws regulating family provision claims make more generous provision for spouses/civil-partners.

You must be able to show more than that you simply need financial assistance or that it is not fair that you did not receive anything under the rules of intestacy.

The entire circumstances of each case will be examined by the court and the following are some of the factors that will be weighed up:

• Your financial resources and needs including your earning capacity, financial obligations and debts, the standard of living and the extent to which the deceased contributed to that standard;
• All of the circumstances of your relationship, including the duration of your relationship, the contribution that you made to the welfare of the family such as by looking after the home or caring for the family;
• Your age and your needs;
• The size and nature of the estate; and
• Any physical or mental disability you suffer, or any other beneficiary suffers.

The court must decide whether the fact that you received nothing from the estate is an unreasonable result.

The court will endeavour to reach a decision which is fair to all parties involved and a balance must be struck between the competing claims of yourself, the beneficiaries under the rules of intestacy (who may include your own children or the deceased’s children from another relationship) or any other claimants who commence a family provision claim.

If the court considers that an order should be made in your favour, this order can be for a lump sum payment, periodical payment or for the transfer of property such as the deceased’s house. Regardless of what the order is, it can only be made from the net estate of the deceased.  If some of the estate has already been distributed, the court has power to recover these assets for the purposes of making an order in your favour.

Select a solicitor who can assess the strength of your claim and assist you in making the decision as to whether or not you should proceed with your claim. They should be able to confidently and assertively ensure that your rights are protected.

The post What does a non married partner need to show to be successful in a family provision claim? appeared first on Wills & Inheritance HQ.

• An unmarried partner;
• Any other person who was maintained by the deceased immediately before the deceased’s death.

You must show that:

• You were living in the same household as the deceased;
• That you and the deceased were living together like a husband and wife or civil partners but were neither formally married or in a civil partnership (an unmarried partner can include gay and lesbian partners);
• That you and the deceased were living together for the whole of the two (2) year period immediately predating the date when the deceased died.

The last requirement is not construed literally, as the courts take a common sense and realistic approach to matters which cause temporary separation between couples such as employment arrangements, sickness etc.

The post What does an unmarried partner need to establish in order to make a family provision claim? appeared first on Wills & Inheritance HQ.

In that situation, the deceased will be considered to have died as a single person without a spouse or civil partner, and the children (including any children from a previous relationship) will take the entire residuary estate. If there is more than one (1) child then the residuary estate will be shared amongst them in equal shares.

If any of the children are minors, their share will be kept on trust for them until they turn 18 years of age.

The post I have children with the deceased, or the deceased had children from a previous relationship. Will they receive anything? appeared first on Wills & Inheritance HQ.