Dying without a well drafted legally valid Will can leave your family members and loved ones in an uncomfortable and difficult situation to deal with your assets when you die. A Will is the only legal way to ensure that the people you care about benefit from your property and assets, (referred to as your “estate”) after you are gone.
How will my Estate be divided if I Don’t Have a Will
When you die without a will you are referred to as dying “intestate” and your estate is distributed under the laws of intestacy.
The law will also determine the distribution of your estate if:
- You fail to properly dispose of allyour assets under your Will;
- Your Will is invalidbecause it has not been drafted or signed properly; and/or
- You did not have mental capacityto make a Will.
Dying without a well drafted valid Will complicates matters for your family. The law decides through a pre-determined formula who inherits your assets in your estate and what portion each person inherits. Each State and Territory has a different formula.
If you die intestate and have no surviving relatives, your State Government inherits the entirety of your estate.
The pre-determined formula is designed to ensure certain family members receive a defined percentage of your assets, regardless of your intentions.
Aside from extensive delay and disruption to your family, when you die without a Will or without an invalid Will your family is required to have somebody apply to the Supreme Court for a suitable administrator to be appointed to deal with your assets in your estate. This in itself can create the climate for more dispute and cost to the estate.
Do I Need a Lawyer to Write my Will?
You can also die partly testate and partly intestate. This occurs when you die with a Will, but only part of the Will is valid and part is invalid or where your Will unintentionally does not deal with all your assets. This adds more uncertainty, strife, inconvenience, delay and expense to your family and/or your executors when administering your estate.
A well-written Will also helps to clarify your intentions if claims are made against your estate or disputes arise about the division of your estate among family members, beneficiaries and/or those who feel they’ve been left out.
Another benefit of making a Will with a lawyer as opposed to, say, using a “Will Kit” or writing a letter setting out your intentions, is that you’ll be prompted to consider issues you may not have thought of, such as how to structure the gifts so as to protect your family from their creditors, matrimonial property disputes, death, deal with your superannuation, insurance policies, debt, trusts, companies and so on. You need a lawyer to draft your Will to ensure you avoid these problems.
If you do not use a lawyer to draft your Will you will miss the opportunity to help your beneficiaries protect their assets (even if they get divorced) and minimise future tax.
Can’t I Just Tell People Which Assets They’re Getting?
A Will has other legal functions beyond dividing assets. It’s an important document for appointing someone to administer the estate after you’re gone, and for setting out what should happen if changes in circumstances occur.
As well as leaving instructions for the administration of your estate, you might convey how you would like your remains dealt with and who you would like to manage your funeral plans.
Antunes Estate Planning Lawyers can help you write a Will that correctly and adequately captures all of your assets in your estate. No matter how big or small, or, how simple or complex your family situation is, it is fundamental to have a well drafted valid Will in place.
When Should I Make a Will?
There’s no time too soon to start planning your estate and making a Will.
Estate planning and Will drafting should be an effortless and easy process. No matter the variables that differ in each individual and family’s personal circumstance, our experienced Wills and Estate Planning team ensures that each and every client is educated and well equipped throughout the process of preparing estate planning documents.
Whether we are preparing simple Wills or complex Wills our personally tailored Estate Planning packages consider each client’s affairs, assets and liabilities (including assets held in discretionary trusts [family trusts] and superannuation).
We are always available to field questions relating to your Will or to continue to guide you should your circumstances change and your Will needs reviewing.
Tim Arvanitis
Lawyer
Antunes Lawyers
The articles on this website comprise legal general information and not legal advice. The general information presented here must not be relied upon without legal advice being sought. In the event that you wish to obtain legal advice on the contents of this general information you may do so by contacting our office or your existing solicitor.