The Importance of Making a Will

15-04-2014    |    Resource

Making a Will can save your loved ones a large amount of money and stress.

It often gets overlooked. It sometimes gets forgotten. The majority of the time it gets placed in the too hard basket. However, in reality, with the assistance of an experienced solicitor, making a Will is a simple, stress- free, and cost effective process.

A Will is a legal document that stipulates your wishes as to who will receive your property and possessions when you die. It is important that you have a valid Will to ensure your estate is distributed to those you wish.     

If a person dies in New South Wales without a valid Will, then that person is described under the law as dying intestate. If you die without a Will a standard formula is used to distribute your estate to your relatives regardless of your wishes. The Succession Act 2006 (NSW) prescribes the order as follows:  

  1. Spouse;
  2. Children;
  3. Parents;
  4. Brothers and Sisters (if predeceased, then to any surviving niece or nephew);
  5. Grandparents;
  6. Aunts and Uncles (if predeceased, then to any surviving cousin).

If a priority category of relative can not be identified, the formula progresses to the next category of relative. Once an eligible relative is found, the process stops. If no eligible relative can be found, your estate will pass to the State.  

If it is your intention to leave your estate to a friend or charity, it is important to understand that the intestate formula does not provide for any distribution to people other than family in any circumstances. 

Having a will is particularly important if you have multiple spouses, de facto or married, or if you have children from multiple relationships as intestacy law in these circumstances is very complicated.

The media coverage of a Surry Hills woman found dead in her apartment highlighted the problems that can arise when you die without a Will. She left behind an estate worth approximately $880,000.00. The date of the woman's death was relevant to determine who was entitled to receive her estate under the laws of intestacy. The deceased woman's brother had died about 4 years ago. If the woman had died before the brother then the $880,000.00 under the laws of intestacy was to pass to her brother. If it was determined that the woman died after her brother then other members of the extended family were entitled to receive the money. Ultimately a Coroner had to decide the likely date of her death. Two sides of the family appeared at the inquest trying to argue the date of death to suit their purpose.

Ultimately the Coroner found that the woman died 8 years ago. As her date of death was before the brother died the $880,000.00 estate went to the Brother.  As he had now passed away the money fell into the brother's estate was in accordance with his Will. This meant that the brother's spouse will receive the full $880,000.00.

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