THE PITFALLS OF INTESTACY – WHAT HAPPENS IF I DIE WITHOUT A WILL

THE PITFALLS OF INTESTACY – WHAT HAPPENS IF I DIE WITHOUT A WILL

Affinity Lawyers experienced Wills & Estate Lawyers have written many articles on the importance of having a current Will, however we are still finding many people don’t properly understand the pitfalls and ramifications that can occur if they were to die without a Will.

What happens if I die without a Will?

Essentially, if you die without a Will or ‘intestate’, then the rules of intestacy will dictate who receives your property in accordance with a pre-determined formula (except in extremely limited circumstances which may require expensive court litigation).

The intestacy rules state:

  • if you are survived by your spouse and children, your spouse will receive all of your household chattels, the first $150,000.00 of your estate and either 1/2 or 1/3 of the residuary estate (depending on whether you are survived by one or more children) and your children will receive the balance equally between them);
  • if you are survived only by your children, then your children will receive the whole of your estate equally;
  • if any of your children die before you but leave children, your deceased child’s children will receive their parent’s share;
  • if you do not have any spouse, child or grandchild, then your estate will be given to your next of kin in the following order:
  1. your parents equally, or the survivor of them solely;
  2. your siblings equally, or if any of your siblings die before you but leave children, your deceased sibling’s children receive their parent’s share;
  3. your grandparents equally, or the survivor of them solely;
  4. your uncles and aunts equally, or if any of your uncles and aunts die before you but leave children, your deceased uncle and aunt’s children receive their parent’s share.

Therefore, it is easy to see how the distribution above may be unsuitable for many people, but in particular, those that have separated but not yet divorced.  Regardless of how long ago you separated, if you are still married, then your ex-spouse would likely be entitled to all of your household chattels, the first $150,000.00 of your estate and either 1/2 or 1/3 of the residuary estate (depending on whether you are survived by one or more children).

It is also important that you understand that in some circumstances your assets can end up being passed onto the government (if you don’t have a spouse, children or next of kin).

In addition , dealing with an estate without a Will can place unnecessary stress and financial burden on your loved ones during an already difficult time. It can place them in a precarious position, where they may have no control over major assets (such as the family home), and having to deal with an unfamiliar government department in respect of their personal situations whilst dealing with their grief can also cause unnecessary anxiety and worry.

Additionally, if you are in a de-facto relationship and you die without a Will your partner may still be entitled to part of your estate. However, your partner may need to prove the relationship and their entitlement, this can involve a lengthy and expensive court battle where the outcome is not guaranteed.

Our Wills & Estates Lawyers also see many people who think they don’t need a Will because they only have minimal assets. Unfortunately this is not the case.

A Will is a legal document which can allow your loved ones to organise many other aspects of your estate after you pass, and is not solely used just to nominate who will receive your assets and belongings after you die.

These options include, but are not limited to, the following:

  • nominating the person who will be responsible for managing your estate (your executor);
  • allowing your executor to arrange your funeral and to make decisions about organ donation and/or medical research in accordance with your instructions;
  • avoiding needless taxes when your estate is being administered and allowing your executor to have the authority to cancel unnecessary services for example, electricity;
  • appointing a guardian for your children until they are at an age where they can look after themselves;
  • appointing a trustee for any funds or assets left to minor children (or other beneficiaries) who may not be able to control these themselves;
  • dealing with sometimes complex issues relating to blended families, former spouses/de facto partners and children from earlier relationships;
  • providing for someone who normally wouldn’t be automatically entitled to your estate;
  • excluding a beneficiary who might otherwise receive part of your estate (conditions apply);
  • to leave assets or funds to a charity.

Having a current Will upon your passing and nominating who you wish to receive your estate on your death in a valid Will can save your loved ones from a lot of anguish, financial loss, unnecessary financial expenditure and stress and is a simple and cost effective way to safeguard your wishes upon your passing.

For example, nominating your de-facto partner as your beneficiary can eliminate the need for your partner to endure an arduous litigation process with uncertain outcomes.

If you have young children, you are able to nominate a testamentary guardian of your children in your Will. This can provide them with the ability to make important decisions about your child’s future, such as their education.

There are many ways that you can ensure the future welfare of your spouse and children is as secure as possible. Affinity Lawyers can recommend a suitable solution for your unique circumstances.

We hope that you have now decided to ensure that you have a Will drafted (if you do not have one), or your current Will reviewed to ensure that is accurately represents your wishes and is drafted correctly.

Our Wills & Estate Lawyers are ready to help guide you through the process, and the first step is to telephone our Gold Coast office today on 5563 8970 to arrange your Estate Planning Consultation.

Next month, we will be providing some further, in-depth information regarding the drafting of Wills, and the ramifications of doing it yourself.

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