Lots of people die without ensuring valid preparations are made for their assets after their death. Don’t let it be you.
Dying without a will is called dying intestate, while dying with a will is called dying testate.
Not having a valid will can occur for lots of reasons, not just because one was never made. People make invalid wills all the time, for example not making arrangements for everything they own within the will, the will not being signed properly by a lawyer or the person, lost or lowered mental capacity, or a poorly-constructed document that doesn’t fit the minimum criteria.
Sometimes part of the will is valid, and part of it is not. An invalid or incomplete will takes up more time and money fixing it, so getting it right before you die is an important preparatory step you make for those who have to clean up your documentation mess.
Contact Vanessa Ash to tidy up your loose ends in very specific, legally-defined ways to avoid family disputes and confusion when you die.
What happens if my will doesn’t exist or is invalid?
An administrator must be appointed by a court, which may not be someone you would have normally chosen. This person will arrange your funeral, collect assets and then distribute them after paying debts and taxes.
A family tree must be constructed, which as you well know, takes time and energy, and therefore expense. Finding any long-lost relatives may be difficult.
If your next of kin is not of legal age or is incapacitated, an administration bond may be required, a third-party guarantee. This is usually an insurance company who will provide compensation if the administrator doesn’t do the job properly, with this bond equal to the value of the estate being administered. Some companies are exempted from this.
Who inherits my estate by default?
There are predetermined rules for this, so certain members of your family get predefined percentages of your assets, with every state and territory of Australia having their own rules to say who is your next of kin, who inherits your belongings and assets, and what percentage they receive.
Each state has its own rules, however as a general rule, a spouse and/or children become the beneficiaries, which can become complex when you involve mixed families. Some states permit other parties, such as charities or volunteer organisations the deceased took part in, to petition for part of the estate once after death. There are special rules applying to Aboriginal estates and who may claim upon them.
The division of your property depends on the value of the estate and the type and number of family members you have.
Where should my will be kept?
People usually keep a copy of their will in their personal documents somewhere, with bank accounts, share portfolios, an accountant or financial adviser, an insurance company or with their bank. If nobody can find the will, the person is considered to have died without one, intestate.
What if I haven’t got any family left and don’t leave a will?
The Public Trustee usually takes control of the administration, pays for and organises your funeral, and updates any tax and outstanding debts. If they can’t locate any of your relatives, the farthest being a cousin or their children, the state then takes control of your estate.