I’ve taken a hammering this week from people misplacing their anger about Wills and estates, and I’m sick of it. RANT ON:
I’ve just hung up the phone from an otherwise sweet lady, whose 100 year-old aunt had recently died without a Will.
I had to explain to her about the process of applying for Letters of Administration (differing from Probate), and which relatives have priority to do so, and how much the fees and expenses would be.
Every adult Australian needs a Will, but this often gets overlooked. Confronting our own mortality and making an estate plan makes some people uncomfortable.
There’s no law that says you must have an estate plan—but there are laws in every State and Territory in Australia that determine how your property is distributed if you don’t have a Will.
So, are you happy to let the Government decide who gets your assets?
When you are going through a separation, you need to update your estate planning documents to protect yourself, your children & family and your assets. Here are some important matters to consider after a relationship breakup.
Intestacy
Perhaps you intend to create a Will but just haven’t gotten around to it, or maybe the size of your estate is such that you don’t think you need one. “Dying intestate” is the legal term for dying without a Will or leaving a Will that does not adequately deal with all of your property.
Intestacy is all but a guarantee that your loved ones will suffer a needlessly complex and expensive legal process after your death. Your best protection is to make your wishes known by consulting with a specialist Adelaide Wills lawyer at Genders & Partners.
A Will dictates how your assets are distributed and names executors to lawfully carry out your wishes. Without a Will in place, you have no say in who inherits what. There are intestacy laws in every state and territory of Australia that determine the distribution of assets among your nearest blood relatives, but your loved ones may dispute the process and cause drawn-out legal battles, the costs of which are deducted from the estate. These state laws vary from time to time and from place to place, so the precise formula which decides who will inherit your assets depends on when and where you die.
When a person dies without a Will, this is known as dying “intestate”. This might happen because their death occurs before they even considered writing a Will. Some people feel that they don’t need a Will because they don’t have a substantial estate. A person might write a Will, only to have a Court declare it invalid after they die, which has the same legal effect as dying without a Will at all.
When a person dies without a Will, the law has to find a way to distribute that person’s property. In some parts of the world, the government will take most or all of the deceased’s estate, but in most western countries there is a strong preference in the law to keep property in the family of the deceased, generally leaving it to the closest living relatives.
The exact order of priorities among relatives differs from state to state in Australia, but the goals of intestacy law (keeping property in the family) are broadly the same, so the schemes in each State are usually quite similar.
Often the surviving spouse will receive the first “piece” of the deceased’s estate. The value of this piece varies over time. For example, in South Australia for many years the surviving spouse in an intestacy would receive the first $10,000 plus a percentage of the remaining estate. In February 2009, the law in South Australia was changed to increase this to $100,000 plus a percentage of the remaining estate.
