What property can you claim?

Published 11 Oct 2016

If a loved one passes away, one of the last things on your mind is inheritance. However, if your loved one’s will does allocate you a portion of the estate or the segment is not reflective of your relationship, you can seek redress under Australian law.

Contesting a will depends on a number of aspects, and one of the most important is knowing what you will stand to gain. To answer this question, you first will need an understanding of what can be disposed of by a will.

What property can be disposed of?

The Succession Act 2006 governs wills and estates in New South Wales. It defines property very broadly as “any valuable benefit”. However, the most important aspect of this process is whether the person is eligible to give it away.

The first question any person asks themselves when writing a will is: Do I have the appropriate ownership of this asset? the reason for this is that a person can only distribute an asset if they own it.

Solely owned assets and assets owned in joint names as tenants can be passed on. For the latter, only the share the person has access to can be distributed by a will.

An executor is required to settle the debts of the estate out of the assets in the estate. However, if a property has a mortgage on it, the executor does not have to deal with the debt before it is distributed to beneficiaries.

How does this impact contesting a will?

If you are contesting a will, but are unsure of the assets available for distribution, it is important to seek professional legal advice. A contesting wills lawyers can help ensure that your claim will lead to an actual share of an estate.

If, for instance, the will-maker jointly owned a home, you would not be able to inherit all of the property, only the amount outlined in the deed. As such, the amount you receive could be a lot less than expected. This is compounded if the property has a large mortgage attached.

If you would like to know more about the possible contingencies that could impact your will contestation, make sure you talk to the experts in the field of wills and estates. Contact a representative today and make sure your claim gets off on the right foot.

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