Don’t die intestate!

Making a Will is arguably the most important document that you will create in your lifetime.  It can make life much simpler for your survivors if done well, with attention to your own particular circumstances.  If you don’t have a Will when you die then the assets that you had intended to go to your loved ones may not end up where you had wished them to go.

Without a Will your estate will be divided in the way set out in the Administration Act 1969.  While the list of beneficiaries provided for in the Act will predominantly be made up of your family members the distribution may not occur in quite the way you would have imagined.

It is also more costly and time-consuming to administer an estate where there is no Will.

If you are in a second relationship, marriage or de facto, and you have not made a new Will since you separated, your first spouse may have the ability to claim against your estate.

Under the Act if a person has died intestate leaving a surviving de facto partner and a wife (or husband) from a former relationship and there is no divorce or formal separation order then their estate is to be distributed equally between the former wife (or husband) and the de facto partner.  Although the person who has died may have entered into an agreement with their former spouse for the division of relationship property, under the law this only applies to their relationship rights but it does not affect the surviving spouse’s entitlement under the Act to receive a portion of the deceased’s estate.  It is possible to inadvertently leave behind a massive emotional and financial burden for the de facto partner upon the death of the person.

Even if you have not been in an earlier relationship, dying without a Will is not advisable.

This is an example of the problems that can occur when you die without a Will.  Although the estate can be finalised by reference to the Administration Act, considerable cost and frustration can be avoided by ensuring you have a valid Will.

It is a common misconception that if you have very few assets there is no need to do a Will.  A Will is a flexible document that allows for an increase in assets over time to be dealt with appropriately.  Imagine, you win Lotto and die a week later.  Or you may have inherited from a family member.  If you haven’t had an opportunity to update your Will that was made when you had very few assets, it can still provide for the distribution of your newfound wealth.

For a variety of reasons, having a valid well-considered Will is an important matter that deserves attention.

By: , Legally Speaking with Nicolette Bodewes, Schnauer & Co.

Issue 89 July 2018