With people living exceedingly busy lives, it’s easy to put off those tasks we rarely think about – making a Will is usually one of them.
However, there are many good reasons to give that task priority. The reasons are never more apparent than when you consider what happens if you die without a Will.
So what happens if I die without a Will?
If you die without a Will (known as ‘intestate’), it can be a complicated process to finalise your affairs. If you own real estate, shares or investments or even if it’s only a sum of money you have in the bank, your relatives may need to obtain “Letters of Administration” from the Supreme Court of New South Wales in order to release those assets.
In order to obtain Letters of Administration, an eligible person must apply to the Supreme Court of New South Wales to be appointed as administrator of your Estate. This may not necessarily be the person who you would have wanted to manage your affairs, or who you would have chosen as your Executor had you made a Will.
The role of your Administrator
The application the administrator must make to the Supreme Court can be complex, and usually involves establishing the entitlements of your next of kin by certificate evidence which may be an expensive and time-consuming task depending on who those persons are, and where they live (the expenses of which are paid out of your Estate).
The duties an administrator performs include arranging the funeral, collecting your assets, paying your debts and distributing whatever is left over. Problems may arise where your next of kin is a minor or under a disability, or where the administrator is unable to locate your next of kin. In these circumstances, the Court can require the administrator to obtain an administration bond, which essentially insures against the administrator’s failing to comply with their obligations when administering the Estate.
Distribution of your assets
It is often thought that if you die without a Will then your Estate will automatically pass to the State. That is not the case. The way in which your Estate is distributed is determined by the provisions of the Succession Act 2006 (NSW).
A common assumption people make is that if they die without leaving a Will, then their spouse will inherit their Estate. While that is certainly true of jointly owned property, in New South Wales your spouse is only entitled to your whole estate if: -
1. They are your only spouse; and
2. You have no children; or
3. You have children who are also your Spouse’s children.
If you have children who survive you who are not your spouse’s children, then the Succession Act 2006 (NSW) provides that your spouse will be entitled to:
1. Your personal effects;
2. A statutory legacy; and
3. Half of your remaining assets
with the rest passing to your children. Your spouse could therefore be surprised to find that half of your Estate has passed to a child of a previous marriage with whom you have had no contact. With the prevalence of remarriage and second or even third families, this is not an uncommon occurrence.
Under the Act the definition of a spouse includes a person to whom you were married immediately prior to death. This means that if you are separated (but not divorced) from your husband or wife and you die without a Will, your husband or wife could be entitled to your Estate - regardless of the fact that you are no longer in a relationship.
The best way to avoid these complications is to make a Will - that way you make your own decisions about who will inherit your estate, rather than it being determined by the Succession Act 2006 (NSW). You can choose to make gifts to your favourite charity, a friend or even a distant relative who may not otherwise be included under the inheritance rules of intestacy. Moreover, you will save your family and loved ones a great deal of administrative work, anxiety and expense if you have left a clear Will, rather than making them go through the process of having to prove to the Court that they are entitled to your Estate.
If you haven’t made a Will, we at Mothers in Law Lawyers encourage you to seek expert legal assistance in preparing one. This is the surest way to ensure your loved ones are protected and your Estate is administered in accordance with your wishes and not eaten up in legal fees.
Mothers in Law Lawyers can help you reduce the burden of preparing a Will. Our efficient but thorough approach to the preparation of Wills will ensure you create a valid Will without the stress.
We offer a no obligation initial consultation to discuss your needs for a Will absolutely free of charge.
Our fixed fee Wills service is carried out by an experienced and dedicated solicitor.
Call Kylie at our Central Coast office today on (02) 4384 3710 to get the process underway.
Kylie Borodin Mothers in Law Lawyers (Central Coast) Tel: 4384 3710 Mob: 0422 327 477 E: firstname.lastname@example.org 3 November 2014
Mothers in Law Lawyers (Central Coast) provides fixed fee Wills, Estates and Probate to all areas of the Central Coast including Avoca Beach, Berkley Vale, Bateau Bay, Bensville, Berkeley Vale, Budgewoi, Buff Point, Calga, Charmhaven, Chittaway Bay, Copacabana, Davistown, Doyalson, Empire Bay, Ettalong, Erina, Forresters Beach, Gosford, Green Point, Halekulani, Holgate, Kariong, Kincumber, Killarney Vale, Killcare, Koolewong, Lake Haven, Lisarow, MacMasters Beach, Matcham, Mooney Mooney, Narara, Niagara Park, North Avoca, Ourimbah, Patonga, Point Claire, San Remo, Saratoga, Springfield, Terrigal, The Entrance, Toukley, Tuggerah, Umina, Wamberal, Woy Woy, Wyoming and Wyong.