The complexities surrounding Wills and Probate can be difficult to anyone other than a highly trained lawyer. These complexities combined with the uncomfortable feelings often associated with making a Will, all combine to make it an unpleasant task which people tend to avoid.
Our intent is not to concern you in regards to your mortality. Instead, we want to help you understand that having a Will and appropriate Estate Planning in place should be addressed sooner rather than later. Too often, we deal with circumstances concerning the sudden and unexpected passing of a loved one where there is not a Will.
Intestacy – dying without a Will
Dying without a Will leaves your estate in limbo with added emotional stress for your loved ones to deal with, when these circumstances could have been avoided. Dying without a Will is known as dying “intestate”.
Leaving a valid and up to date Will, which reflects your current wishes means that after your passing, your estate will be handled correctly. Dying intestate means that there is no one to carry out these tasks as you would like them to be done.
Instead, the law of intestacy determine how your property and assets will be divided. If one of your friends or relatives want to take on the administration and distribution of your estate, then they must apply for Letters of Administration. However, if there is no one available to do this, the court can appoint somebody else.
How are my assets distributed?
A question we are regularly asked is ‘Who inherits everything if I die without a Will?’ The Succession Act (Qld) sets out how property will be distributed. However, these rules can be very complicated.
De facto partners also have inheritance rights. Again, this can be problematic. If there is no next of kin or known relatives, then the estate can be left to the State.
Even if you have a Will, there are some circumstances that can determine your estate being deemed intestate. These include;
- An incomplete Will where the Will fails to dispose of all your assets;
- An invalid Will where the Will has not been signed and witnessed according to law
- Mental Incapacity where it is later discovered that you did not have the mental capacity to make a Will
It is clear that circumstances can be complicated if you do not have a valid Will. It will inevitably end up costing your family time, legal expenses and additional unnecessary stress. Unfortunately, when a loved one passes away family disputes can occur. Money can bring out the worst in people. All of this combined with the pain that grief brings can result in a difficult time for your loved ones.
Please contact our Estate Planning team who can assist you in ensuring that your estate will be distributed in accordance with your wishes.