If you die without a will, your assets will be distributed according to a legal formula. This might mean that your assets do not end up with the person you would have chosen. It also means that you have no control over who distributes your assets.
Even if you’re happy to have your assets pass according to the law, consider the possibility that people you never intended to benefit may end up with part of your estate. As lawyers sometimes say, “where there’s a will there’s a family; where there’s no will there’s still a family!”
For instance, if you don’t have children and die together with your spouse, a relative you repeatedly bailed out of substantial debts may be rewarded because he’s first in line under the intestacy rules.
Wills can be as simple or as complicated as you wish, but your family will always be better off if you have one. Yes, there is legislation in every State and Territory to compensate for your lack of foresight, but like most safety nets it’s a second-best option, by a long way.
What about de factos and their children?
A de facto spouse is a partner who you treat as your husband/wife, but who you are not legally married to. Sometimes the law will not recognise the legitimacy of a de facto relationship unless the couple has been living in a marriage-like relationship for a minimum period of time.
If you die without a valid will, your de facto spouse may not inherit any of your assets. There are also statutory provisions in some States that limit the definition of a “de facto spouse”. De facto relationships are handled under State laws and include a requirement that the couple lives in a genuine domestic relationship for a prescribed period or have a child together. There have been some dramatic changes in these laws in the last decade, focusing on a more flexible approach including, in some circumstances, the legal recognition of same-sex couples.
This is another good reason why it is important to have a valid will.
As far as your children are concerned, they do not have to be born from a legal marriage to share in the distribution of your assets.
What about lost wills?
This is more common than you may think. Of course, you should look very hard for a lost will, including asking the bank and the deceased's solicitor and accountant (and perhaps a trusted friend). It's also worth checking trustee companies placing an advertisement in newspapers or the journal of the law society - this would alert a solicitor who may have made the will.
Who inherits the deceased's estate, and how much do they get?
Regardless of whether or not you have a will or not, the first people who get taken care of, are creditors or people who the deceased owes money to. All debts need to be repaid including the following:
• Funeral expenses
• Taxes
• Debts to any financial institutions or other lenders
• Any outstanding administrative or legal expenses
After this, any assets specified in a will are distributed as requested. Anything not mentioned in a will is then distributed according to the intestate laws.
The intestate order of inheritance in NSW
The general order of inheritance is as follows:
1. Spouse
2. Children and grandchildren
3. Parents
4. Siblings
5. Grandparents
6. Aunts and uncles
7. Cousins
8. The state
It typically runs down the line until an eligible inheritor is found, at which point the estate is divided evenly among everyone at that level. Anyone who does not survive the deceased by at least 30 days is not considered to be an inheritor.
Does the spouse get everything?
In general, if there's a spouse, then they will get the entire estate except in two situations:
• The deceased had children, but not with the spouse.
• There is more than one spouse.
• The deceased owned property as a joint tenant with someone else.
What about Indigenous Australians with no will?
If an Indigenous Australian passes away without a will then they can have their estate dispersed as listed above. They also are entitled to have their estate distributed according to the laws, culture, customs & traditions of the Indigenous community. An application is made by the administrator of your estate or by a person who the community deems would be entitled to a part of your estate.
If the Supreme court oversees the distribution of your estate then the intestacy laws listed above do not apply.
There's no will. What happens now?
In order to properly distribute assets, someone needs to be appointed as an estate administrator. This person is then responsible for making sure the estate is distributed correctly in line with the rules set out above.
Before they can start, this estate administrator will need to apply for a grant of administration from the courts. This is essentially a notice which lets them withdraw the deceased's funds from banks, pay back creditors on their behalf and otherwise manage the finances as needed.
Note that a grant of administration will not always be needed.
• If there aren't a lot of intestate assets and there's a clear path of inheritance such as a single spouse, then a grant of administration may not be needed.
• If there aren't a lot of intestate assets and all those involved can agree on how to distribute them, then a grant of administration may not be needed.
The law is complex and difficult to understand so we make sure we take the time to make sure you thoroughly understand and then how we will work with our knowledge of the law to obtain the best possible result. Contact JCL Legal now!
source: finder, smh
