I am often asked why people need Wills?
It is a common misnomer that if someone dies without having a Will that all their assets go to the government. This is simply not true. If someone dies without a Will their assets are dealt with according to the rules of intestacy, which are established under the Probate and Administration Act.
Broadly speaking, under the rules of intestacy, the spouse of the deceased is entitled to the first $100,000 from the estate and the remainder is to be split between children of the deceased.
So why then does someone need a Will?
The answer is (at least) twofold:
- A Will allows the deceased to determine the distribution of their assets in the manner they choose and in the best interests of their family/friends/beneficiaries; and
- A correctly drawn Will streamlines the process of obtaining a Grant of Representation from the Court.
Determining an appropriate distribution of assets
A person may require that upon their death, a portion of their assets is distributed to a particular person or to different people and another portion of their assets is distributed to a different person or different people. The person may have specific ideas about what those portions and who those people should be and the only way of achieving this is through a Will.
For example, whilst the rules of intestacy say that the spouse of the deceased will receive the first $100,000 from the estate, it might be preferable that the spouse receive ALL the estate and only when the spouse dies that the estate of the deceased is distributed amongst the children.
In practice, the answer is that everyone’s circumstances are different and that everyone needs their own Will tailored to their specific circumstances.
Streamlining the process of obtaining a Grant of Representation form the Court
The second reason for having a Will is that it streamlines the process of obtaining a Grant of Representation from the court. By using a Will, the deceased effectively appoints a representative of the estate (executor) who can deal with the assets and by filing a copy of the Will with the court as part of the Probate application, the process is simplified, clear and unequivocal.
While we’re talking wills, I want to take this opportunity to say that whatever you do, have your will professionally prepared!
I have seen many dodgy and ineffective wills which leave beneficiaries in the lurch, either not getting what they should have or having to wait months or years for court process to be finalised before getting their inheritance.
Also, what a lot of people don’t realise is that they will need to keep track of whoever witnesses their Will. When an application for probate is lodged with the Probate Office of the Supreme Court they will want to know who witnessed the will and where they are now!
Only a will done by a solicitor, where details of professional witnesses are tracked, can give you that sort of security.
In short, you need a will; have it professionally prepared!
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