Time limits to make a claim against a Will/Estate…

Challenging a deceased family member’s Will can be a difficult thing to decide to do.  It is important to know in particular how long you have to be able to make a claim against the Estate. 

An Estate is the legal entity created using a Will (or in some cases where there is no Will) once somebody has passed away. 

Any challenge to an Estate, regardless of whether there is a Will or not, is made in the High Court, but sometimes it just can be made in the Family Court.

If somebody dies without a Will they are considered to have died intestate.  A death certificate will still be produced to record that person’s date of death, and there is a prescribed order in which family can receive portions of that person’s Estate.  This can also allow any other potential claimant a chance to challenge where there is no Will, particularly where there was a promise made by the deceased but not catered for under the laws of intestacy.

When somebody dies with a Will in place, the Will is sent to the High Court for Probate to be obtained (if a person has assets worth over $15,000).  If the Will is deemed valid, then the High Court will grant Probate. Probate is the term used that simply means to make a Will a valid legal document.

In any of the instances above, there are timeframes in which people need to make their claim against the Estate.

If somebody dies without a Will, or dies with a Will that does not need Probate to be obtained (because it is under the $15,000 threshold to do so), then the deadline for making a claim against the Estate is 12 months from the date of the person’s death. 

If somebody dies with a Will, and Probate is obtained, then any claim against the Estate must be made before the deadline of 12 months from the date of Probate. 

Generally speaking, Executors are not to distribute any parts of an Estate within 6 months of the date of death or date of Probate unless all identified beneficiaries agree to an earlier distribution.  This is to enable any person to give notice that they wish to make a claim against the Estate. 

After 6 months from the date of death or date of Probate, the Executors can begin to distribute property, but it is highly encouraged that they do not do so if anybody has given formal written notice that they are going to challenge the Estate.  In this instance the best practice is to keep the assets in the Estate until the expiry of the 12 month period noted above.

If there are concerns that the Executors may distribute the Estate after 6 months, regardless of notice being given before then, or if there is a likelihood for an anticipated claim, it is best practice to get legal advice early on from a lawyer who practises in this area to determine what you should do to protect your potential interest in the estate.

From an Executor’s point of view it is also better to obtain legal advice as to what should be done with the assets in the event of any claim or potential claim.

Leading law firms committed to helping clients cost-effectively will have a range of fixed-price Initial Consultations to suit most people’s needs in quickly learning what their options are.  At Rainey Collins we have an experienced team who can answer your questions and put you on the right track.

Shaun Cousins