If you pass away and do not have a will or your will is otherwise invalid, you are considered as dying ‘intestate’. This means that your assets will be distributed amongst surviving relatives in accordance with the Succession Act 2006.
Who inherits your estate in intestacy?
There is a hierarchy of people who are entitled to inherit if someone dies without a valid will. However, the inheritance is not divided equally. Consider the flow chart below:
Intestacy is usually problematic for two main reasons:
the intestacy flowchart ignores your wishes and simply follows the above process, which could lead to unintended consequences; and
the estate administration process is more complicated and costly for your beneficiaries.
Ordinarily, when a person has passed away and made a valid will during their lifetime, the executor is required to apply to the Supreme Court of New South Wales for a grant of probate. If you pass away without a valid will, your next of kin or a loved one will need to apply for a grant of letters of administration.
The Court requires additional steps to be undertaken in respect of an application for a grant of letters which can cause delays and additional expense in the administration of the your estate.
Importance of making a Will
A will can be made by any person over the age of 18 years who has mental capacity to do so. Wills play a crucial role in setting out your wishes for your estate after you pass away, and can assist to minimise disputes amongst family when it comes time to distributing your estate.
For a will to be valid, it must be:
In writing ;
It must be signed by the testator (i.e. the 'will-maker'); and
The testator’s signature must be witnessed by two other independent people, who are not beneficiaries or the spouse of a beneficiary and who are present at the same time.
It is important that you have your Will is properly drafted by a solicitor to ensure validity and that your estate is distributed according to your wishes.
The laws surrounding the constructions of wills can be complex and an improperly drafted will can have unwelcome consequences for the distribution of an estate.
We provide comprehensive estate planning services for clients in the Sutherland Shire and greater Sydney area, including:
Wills, from simple to complex
Testamentary Trusts in Wills
Protective Trusts and Special Disability Trusts
Blended family solutions
Enduring Powers of Attorney
Appointments of Enduring Guardian
Advising on the risk of estate claims and crafting appropriate strategies
Tax effective strategies
Estate planning for superannuation
Reviewing family trusts to pass control on death
Documents for incapacity (such as Enduring Powers of Attorney, Health Directives, etc.)
Safe custody document storage
Call or email us today to discuss your estate planning.