Why you need a Will

You are not too young to have a Will drawn up. Death can come at any point and whilst you hope that it’s many years away, the truth of the matter is that there’s a fair amount of luck involved. One thing that you can control, however, is your decision to be as prepared as possible for this event. Trust us when we say this: dying intestate is a massive pain and is why you need a Will. If you don’t believe us, look up the tragic legal battles of the Jimi Hendrix and Bob Marley families which have battled for up to three decades in an attempt to settle the estates of their loved ones.

What a Will is

A Will is a document that directs what happens to your assets after you die. There are technical requirements for the document to be recognised as a valid Will. Some assets may not be able to be dealt with by your Will, such as assets you hold with other people, superannuation, interests in family companies or trusts. A solicitor can help you put in place a Will and a plan to deal these other assets and interests.

What happens if you die without one

If you die without a Will, you “die intestate“. This means that State Intestacy Law will be applied and the estate will be managaed and distributed in accordance with the provisions of Part IA – Intestacy of the Administration and Probate Act 1958.

Not having a Will means:

• You do not have a say about who will benefit from your estate, for example, your assets could be shared with relatives who you do not wish to benefit;
• You do not have a say about who is charged with the role of administering and making final decisions about your estate;
• Your estate may take an extended period of time to settle (more than 12 months); and
• The cost to settle your estate may be significantly more than if you had written a Will in the first place.

No matter the size, your estate will need to be administered and settled. This task would fall on either an executor nominated in your will or, if you died intestate, the role would be delegated to a next of kin (generally the individual who has the largest entitlement to the estate).

So what does this mean?

The distribution of the estate on intestacy is briefly:

• a)  Where the deceased leaves a partner, but no child – the partner takes the whole of the deceased’s estate;
• b)  Where the deceased leaves a partner and children, and the children are also children of the surviving partner, the partner takes the whole of the deceased’s estate.
• c)  Where the deceased leaves  a partner and a child or children who is not the child of the partner, then:
  • i)  the partner takes:
    • 1. the personal chattels, plus
    • 2. the first $451,909 (the statutory legacy), plus interest on the statutory legacy from date of death to payment (the partner taking all of the estate if the estate is worth less than the statutory legacy), plus
    • 3. One half of the balance of the estate, and
  • ii) the children of the intestate are entitled equally among them to the other half of the balance of the estate in equal shares.
• d)  If the deceased leaves more than one partner, then the partners, in the absence of a distribution order or agreement will take the partner’s share equally among them.

The statutory legacy is indexed each year for movements in the Consumer Price Index (Melbourne). There is also provision in the revised statute to deal with the situation where the deceased leaves more than one partner.

Why you need a lawyer

The statutory formula for the distribution of an intestate estate differs from state to state (and territory). The assets of an intestate are distributed according to the statutory formula of the relevant jurisdiction. This can result in the assets of the intestate being distributed according to different statutory rules. For example, if a person dies intestate leaving assets in, say Victoria and in Western Australia, the assets situated in Victoria will be distributed according to Victorian law, and the Western Australian assets will be distributed according to the laws of that state.

Our team at Just Family Law can help you avoid these issues by bringing you into the office and helping you draft up a Will and making sure that your intentions are carried out. Give us a call at (03) 9793 7888 or send us an email at reception@justfamilylaw.com.au