All of us, young and old, are not impervious to Father Time.
Even if you don’t believe you own enough assets to make it worthwhile, having a Last Will and Testament ready can prevent uncertainty, grief and monetary loss for loved ones left behind to deal with your financial affairs.
Recently, a distraught wife sought advice from one of our Wills Lawyers. Her spouse was terminally ill and did not have a Will. Due to his illness, he no longer had the mental capacity to make a Will. She and her husband had only one asset of value, their matrimonial home for 30 years, valued at $450,000.
She had two children, one of whom she was not on good terms with. The wife said that she and her husband always intended that the matrimonial home would pass on to the surviving spouse to live. The wife was distraught as she feared that she would not be able to continue to reside in their matrimonial home should her husband pass away as it was registered in her husband’s sole name.
We advised her that if her husband did not make a Will, he would pass away ‘intestate’.
We further advised that she could continue to reside in the matrimonial home if the children were agreeable. If not, it would have to be sold to distribute the proceeds of sale to her and the children. The matrimonial home would be distributed in accordance with the law in Western Australia with the first $50,000 from the deceased estate and the balance of one-third going to the surviving spouse and the remaining balance of two-thirds to the children in equal shares.
Finally, we advised her that she could make an application to the Supreme Court for a larger share of her husband’s estate or the right to reside in the matrimonial home for the rest of her life on the basis that her husband had failed to make proper and adequate provision for her. All these complications could have been avoided if the husband and wife had sought estate planning advice.
A Last Will and Testament could have been drawn up where the husband left the matrimonial home to the wife or alternatively, he could have during his lifetime included his wife as a joint tenant of the matrimonial home so that it would automatically pass to her upon his death.
Wills are for everyone and creating a Will is part of the process of estate planning to ensure that upon death, your assets are passed on to your loved ones in the way you intended them to benefit.
A Last Will and Testament is a legal document that specifies how your assets such as property, cash, shares and personal effects are divided and distributed to your chosen beneficiaries when you pass away. Wills also specify a person known as the executor who will be responsible for looking after the estate of the deceased and distributing to the beneficiaries upon death.
While there is no legal requirement for you to make a Will, the creation of a Will is good common sense. It ensures that your assets are distributed according to your wishes upon your death. A person who dies without a Will is said to have passed away ‘intestate’ and his or her estate is then distributed in accordance with the law. If you do not make a Will during your lifetime, it may cause unnecessary angst or conflict among your family members during a time of grieving and loss as your estate may not pass to your intended beneficiaries.
Making a Will also simplifies the procedures for obtaining the right to deal with the deceased’s estate. When a person passes away with assets in Australia, an application must be made to the Supreme Court by an entitled person for the right to deal with the deceased’s estate. This will be an application for a “Grant of Probate” when a valid Will is in existence or a “Grant of Letters of Administration” when the deceased died without a valid Will.
The procedure to obtain a Grant of Probate is relatively straight forward. In this case, the person or persons entitled to apply for the Grant of Probate would be named in the deceased’s Will as the ‘Executor’ or ‘Executor’s. It is the role of the Executor to distribute the assets of the deceased’s estate to the beneficiaries in accordance with the Will.
When a person passes away without leaving a valid Last Will and Testament, a person is said to have died ‘intestate’. The procedure in obtaining a Grant of Letters of Administration for an intestate estate can be more difficult and the assistance of a probate lawyer may be required. The person appointed to administer the deceased estate is called an ‘Administrator’.
In this case, there are laws of ‘intestacy’ that must be complied with which determines who can apply for Letters of Administration, the Administrator’s responsibilities and who the funds of the estate must be distributed to and in what proportion. As the application for Letters of Administration may be more complex, it increases costs to the deceased estate. It can also cause anxiousness and grief to loved ones if the person entitled to deal with the estate under the law is not the person who the deceased trusted and was close to.
There are services available to the public which allow individuals to prepare their own Wills, such as Will Kits. These are inexpensive, however many Last Will and Testament’s prepared in this way often have uncertain terms due to the incorrect completion of the Will or may be invalid due to mistakes in the execution of the Will. It is therefore important when making or updating your Will to seek the services of a Wills Lawyer.
For all enquiries please contact Robertson Hayles Lawyers on (08) 9325 1700 by email at enquiries@robertsonhayles.com or via our contact form and we will be happy to assist you.