The actual estate is the estate of the deceased, which is included in the inventory of property attached to the grant of probate or the letters of administration. Essentially, it is the assets which were in the hands of the deceased at the time of the deceased’s death.

The legislation is quite complex but a little effort will yield significant returns for the legal practitioner and the client.

See Estate and notional estate.

In order for a notional estate to be declared, the deceased must, during their lifetime or on their death, have entered into a “relevant property transaction” as defined in s 76 of the Succession Act 2006 (NSW). This is detailed in the guidance note.

The “relevant property transaction” must have been entered into within two relevant time limits in accordance with s 80 of the Succession Act 2006 (NSW).

See Relevant property transactions.

Even if all of the above factors are demonstrated the court must be satisfied in relation to other factors set out in s 83 of the Succession Act 2006 (NSW).

Under s 89 of the Succession Act 2006 (NSW) the court must not designate more property as notional estate than is necessary to properly provide for an eligible applicant or to meet legal costs.

This notional estate aspect of the legislation is also discretionary. The court is required to take into account the factors set out in s 87 of the Succession Act 2006 (NSW).

See Further considerations to be taken into consideration before notional estate declared.

The court can make a variety of orders in relation to the notional estate and these orders can affect the rights of the legal owner of the property so designated.

Once an order is made designating property as notional estate, the owner holds the property as a trustee on bare trust for the beneficiary, being the applicant for provision. This means that the owner as trustee does not have the usual duties and powers of a trustee to invest the property etc. Their only duty is to transfer the property to the beneficiary who is the eligible applicant if required to do so.

See Types of notional estate orders that the court can make.

The estate that is available for the court to make an order out of is the actual estate of the deceased person. Essentially, it is the assets which were in the hands of the deceased at the time of the deceased's death.

Victoria does not have notional estate legislation like NSW does.

In some cases, the testator may wish to defeat or limit a potential claim by divesting part of the estate during the testator's lifetime. Essentially, the testator is giving away part of the estate to intended beneficiaries so that there is little left for an applicant to claim on.

The estate that is available for the court to make an order out of is the actual estate of the deceased person. Essentially, it is the assets which were in the hands of the deceased at the time of the deceased's death.

Queensland does not have notional estate legislation like NSW does.

See Estate and notional estate.

Note to Western Australian practitioners: Notional estate is not applicable in WA.

Note to SA practitioners: Notional estate is not applicable in SA.

Note to Tasmanian practitioners: Notional estate is not applicable in Tasmania.

The actual estate is the estate of the deceased which is included in the inventory of property attached to the grant of probate or the letters of administration. Essentially, it is the assets which were in the hands of the deceased at the time of the deceased's death.