A validly executed Will is a vital component of estate planning. It is important your Will is prepared carefully by a solicitor in accordance with your wishes.

‘Will Kits’ have become popular over the years as they purport to allow individuals to write their own Wills, and are relatively inexpensive. However, using a ‘Will Kit’ may leave you with an invalid, incomplete or informal Will that does not reflect your wishes, as it was not prepared by a qualified lawyer who is familiar with the laws of estate planning and estate administration. A disputed, unclear or invalid Will could lead to significant financial pressure on your estate and family, and can also strain family relationships. 

What is intestacy?
‘Intestacy’ occurs when someone dies without leaving a valid Will. ‘Partial intestacy’ occurs when a Will only deals with part of one’s estate. If you die without a valid Will, it is at the Court’s discretion to appoint an Administrator. An Administrator essentially fulfills the role of an executor.  However, the role of an Administrator commences at the date of the Grant of Letters of Administration, rather than at the date of death. This means that there can be a period of some months after someone dies before much can be progressed.  It can also be more costly and complicated for your family.

Consequences of intestacy
If you do not leave a Will when you pass away, there is a chance that your estate will not be left to your intended beneficiaries. Having clearly named executors and beneficiaries to your estate reduces ambiguity and the likelihood of family conflict. When administering an estate with a validly executed Will, the executor will gather your assets and distribute them to beneficiaries, after any outstanding debts have been paid.

Without a valid Will which clearly identifies beneficiaries, a family member will have to apply for a grant of Letters of Administration. Your estate can then be distributed to:

• A spouse (eg. a wife, husband, domestic partner or civil partner);
• Children; 
• Parents; 
• Grandparents, siblings, aunts or uncles if no other surviving family members. 

The Administration and Probate Act 1919(“the Act”) sets out a prescribed order of classes of beneficiaries in case of intestacy.

The most obvious issue with an intestacy is that if a person is survived by a spouse and children, the Act say that the spouse receives the first $100,000 and 50% of the balance of the estate, with the children sharing the other remaining 50%. At a worse case scenario, this could lead to, for example, assets needing to be sold to pay portions of the estate to be held in trust for the children. This money held on trust for the children, if under the age of 18 years, is generally paid to the Public Trustee under the Act.

Additional expenses associated with intestacy
The legal costs in obtaining a grant of Letters of Administration, rather than a grant of Probate of a Will, can be significantly higher. Additional affidavits may need to be submitted to the Court, as well as genealogical and other searches. The cost of creating a Will, drafted by an experienced solicitor, can be relatively modest in comparison.  

Why you should prepare your Will with a lawyer

A solicitor preparing your Will will consider:

• All relevant beneficiaries
• Appropriate executor appointment
• Testamentary capacity
• Risks of claims against the estate
• What happens if an intended beneficiary dies before you
• Disposal of all of your assets
• Possible taxation implications
• Possible use of testamentary trusts
• Due execution to ensure a valid Will.

In addition, an estate planning lawyer will go through other documents that may be necessary, such as Power of Attorney, Advance Care Directive or superannuation Binding Nominations.

Book an appointment to see one of our firm’s estate planning lawyers today on (08) 8223 3199.

This blog post was researched and written by our Clerk/Administration Assistant and third year law student, Harry Edmonds.