Types of estate claim
There are a number of estate claims that can be brought against the estate, including:
- a family provision application under the relevant State legislation, which occurs when an eligible person (as defined in each State but which includes, for example, a spouse or children of the deceased person) brings an action to receive something from a deceased person’s estate in circumstances where they received nothing under the terms of the Will, or feel the provision made for them was inadequate; or
- an action to dispute the validity of a Will, for example where the deceased person’s capacity at the time they signed their Will may be in question; or
- an action that already existed before the person died that has not been resolved.
It is therefore important to obtain legal advice from an expert in estate administration to properly defend an estate claim.
What are the Executor’s responsibilities?
One of an executor’s responsibilities is to defend any attacks against the estate and the executor also stands in the shoes of the deceased person in certain legal actions already on foot when the person died.
Executors need to be aware of their responsibilities to the estate and their options when acting as executor where an estate claim is made. Where an executor wants to bring a claim themselves, independent legal advice and guidance is essential.
Getting the right advice
Estate First Lawyers specialise in advising clients on defending estate challenges and we strongly recommend to executors that they obtain legal advice and guidance regarding the important considerations in administering an estate where there is the potential for an estate claim. Executors who don’t defend the estate’s interests strongly enough, or who defend over zealously, risk personal liability for the financial costs to the estate. Many of the issues executor’s face could have been avoided by skilful planning by the Willmaker when they created their estate plan in the first place. There are a number of strategies in estate planning to minimise the risk of an estate attack.
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