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Insights

Most people may think that there is no need to have a Will prepared when you are young and that you only need to worry about a Will when you are older in age or have children or a spouse. This is not true.

Everyone over the age of 18 years should have a Will in place.

A Will sets out who you would like to leave your assets to in the event of your death.

If you fail to leave a Will, your estate will be distributed according to a predetermined formula under the rules of intestacy. This may mean that your estate is left to individuals you did not intend to benefit. This may also mean that the estate may pass to those individuals you would have included in your Will, however they will be left with the stress and delay of having to prove their entitlement to the Supreme Court of NSW.

If there is real property involved, the persons entitled will need to apply for a grant of letters of administration from the Supreme Court of NSW. This can be a very costly and stressful process for those involved and can take a lot longer to process than an application for a grant of probate (i.e. where there is a valid Will in place). To avoid unnecessary stress and delay for your loved ones during what is already a very emotional time, it is best to have a Will.

Hypothetical scenario

Bob Smith has no children. He was previously married to Jane Smith but they divorced two years ago.  Bob has not had any other relationship since he divorced Jane. Bob owns a property and has $200,000 in his bank account. Bob’s father passed away three years ago and Bob’s mother is alive. Bob dies tragically. Bob does not have a Will. Under the rules of intestacy, the estate will pass to Bob’s parents. As his father has predeceased Bob, the whole estate will pass to his mother. Bob’s mother is elderly and in a nursing home. Bob’s mother will need to make an application for a grant of letters of administration to prove that she is entitled to the estate.

This application will involve Bob’s mother providing the following to the Court:

  • evidence of searches that have been made for a Will
  • evidence that Bob does not have any children
  • providing details of the marriage and divorce to Jane
  • providing a death certificate for Bob’s father
  • providing a birth certificate for Bob
  • providing evidence that Bob was not in a de facto relationship at the time of his passing (including accounting for a two year period prior to his death).

In contrast if Bob had a Will in place, the executor of the Will would not be required to provide the above evidence. The Will would clearly set out who was entitled.

 Lesson to be learned

If you fail to have a current Will in place you risk the assets of your estate being distributed according to a predetermined formula under the Succession Act 2006 (NSW).

While the outcome may be the people you would have intended to benefit, the process and time it takes to deal with the estate can be much more complex, stressful and costly for those left behind to deal with your estate.

 

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