Legal Wills in Australia are the most powerful way a person has of ensuring that their assets are going to be dealt with according to their wishes after they die.
Simply leaving it to friends and family members to ‘do the right thing’ can lead to confusion and dispute, which can leave money, real estate and belongings held up in limbo through messy legal proceedings. It may be much more affordable and efficient than you anticipate to have a lawyer explain your rights and options, and prepare official documentation which meets your needs and – importantly – is enforceable.
A Will is a legal document which sets out your wishes as to how you wish to distribute your assets after you pass away. It can also include information like your funeral wishes or appointment of guardians for minor children. Your Will comes into effect when you die. The person(s) you appoint as Executor(s) have no legal right under your Will to act on your behalf prior to your death.
As your circumstances change, you should review your Will to ensure its provisions are still appropriate. You can change your will at any time, provided you have testamentary capacity at the time.
A lot of people think that they do not require a Will, as they assume that their assets will automatically go to their spouse, children or other next of kin, and for this reason they never bother making a will. Generally speaking, it is correct that your assets will go to your spouse, children or next of kin, however, in the absence of a Will, the rules of intestacy govern who gets what from your estate. The distribution in accordance with the rules of intestacy may not be how you may have intended to distribute your assets.
If you do not have a Will, you die intestate, which means that the laws of the state (i.e. the Courts) decide how your assets will be divided. In New South Wales, Wills and intestacy are governed by the Succession Act 2006. The Courts do not have personal knowledge of your circumstances. It is difficult for the courts to take into account things such as which child was close to you, whether one of your children was a gambling addict. Dying intestate may, therefore, result in your estate being distributed in a manner you may not have intended.
Take the example of Mary. Mary had four children with Matthew. Mary and Matthew divorced in 2015. Mary met Jonathan in 2018, who also had children from a previous relationship. They instantly fell in love and got married after two months of dating. Both Mary and Jonathan had significant assets. They often spoke about not having an interest in each other’s estate. Suddenly, Mary passed away in a car crash. Unfortunately, Mary did not have a Will.
In accordance with the laws of intestacy, Jonathan became entitled to a share in Mary’s estate at the expense of her children’s share. The residue of Mary’s estate was divided equally between her four children. This caused a problem between Mary’s children because Mary’s eldest daughter had looked after Mary throughout her life and Mary had promised to give her a bigger share from her estate.
The above example illustrates the importance of having a Will which clearly sets out your intentions about how you want your estate to be distributed.
We recommend that anyone over the age of 18 has a Will. Even if the estate only comprises of bank accounts. If you own real property, it becomes even more important to have a Will.
If you have any further questions about Wills, you should consider speaking with one of our Lawyers. You may discuss whether a Will needs to be made or be amended to express accurately what you wish to provide. Remember that a Will is revoked by a marriage, but not by a separation and it may be important to make changes to provide as you would wish, particularly if you have children.
If you’re interested in making an appointment with a professional lawyer at Watts McCray, be sure to get in touch with the office that’s closest to you. Visit our Contact Us page to find out more. We are proud to be able to offer locations all around New South Wales in Australia.
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