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.
However, the reality is that the vast majority (80-90%) of Will disputes are resolved during the mediation process and therefore who pays legal costs are negotiated between the parties in dispute. If you're an executor or beneficiary defending a Will, legal fees will generally be deducted from the estate funds.
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.
There is no specific amount of commission an Executor is entitled to. However, the court will typically award a commission in a lump sum or percentage of the estate. Here is an estimate of the ranges: 0.25% to 1.25% of the value of transferred assets.
Contesting a Will is when you have been left out of Will, or feel you have been treated unfairly by the Testator within their Will. Therefore you launch a family provision claim. To challenge a Will is to dispute a Will, or to say that the Will itself should be struck out.
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.
Theoretically, anyone can challenge a will, whether that's a sibling, or someone who doesn't appear to benefit on first glance, but may be a residuary beneficiary. However, contesting a will is not something you should consider without good reason.
In short, yes, an executor can be a beneficiary of a will, in fact, it's quite normal for that to be the case. The only people who cannot be beneficiaries under a will are those who witnessed the will when the deceased signed it.
Wait Six Months (or sometimes longer)
By law the Executor has to hold onto estate assets for six months from the date Probate is granted, and cannot pay out any money to the beneficiaries before this time is up.
Solicitors' probate fees are usually calculated as between 2% to 5% of the value of the estate, plus VAT.
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.
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.
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. As a result, the applicant's financial situation is of particular importance to the application, as is his or her relationship with the deceased.
An executor cannot claim for the time they have incurred; however they are entitled to be reimbursed for the reasonable costs of the administration. What is the role of an executor?
If the Solicitors are acting as professional Executors then the value factor charge will be 0.75% of the value of any residence and 1.5% of the balance of the gross value of the Estate.
The general rule about legal costs is that the losing party will pay the successful party's costs, but the judge has a wide discretion. If, for instance, the judge felt that the matter proceeded to court because of something the testator did wrong, then he might decide that the costs should be met by the estate itself.
Beneficiaries are also entitled to receive an accounting of the estate from the executor. This means that the executor must provide proper accounting for the estate's assets and expenses, in legal court format, to beneficiaries in a timely manner.
Executors receive 5% of the value of any money they actually receive or pay out in cash while handling their duties. They should not count any cash that was already in the decedent's bank account at the time of death though.
This is because there is a six month time limit under the Inheritance (Provision for Family and Dependents) Act 1975, which runs from the date of the grant of probate. If a claim were to be brought, it would be far better that the beneficiaries have not received the money rather than being asked to repay the money.
Does a next of kin have legal rights and responsibilities in the event of my death? No. If you have made a Will, your executor(s) will be responsible for arranging your affairs according to your wishes. Your executor may appoint another person to act on their behalf.
Precautions you can take to avoid a contest
To prevent a contest to your will, make sure your will is executed properly and that you take all the precautions your attorney suggests to avoid any chance of a contest. It is also a good idea to talk to your heirs about what is in your will and why.
Sibling disputes over assets in a parent's estate can be avoided by taking certain steps both before and after the parent dies. Strategies parents can implement include expressing their wishes in a will, setting up a trust, using a non-sibling as executor or trustee, and giving gifts during their lifetime.