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Why Do I Even Need A Will?

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One question we often hear is; ‘Why do I even need a Will?’

Understandably, planning for your death is not usually something that you think about regularly. Often times it is considered the least important of tasks. However, considering that you could die at any moment, planning for what happens afterwards and ensuring that your estate is administered in accordance with your wishes should be considered one of the most important things you can do.

If you die without a valid Will, this creates what is referred to as an intestacy. If this occurs you will find that your estate will be distributed in accordance with legislation, namely, the Administration Act 1903.

Enclosed is section 14 of the Administration Act 1903 which specifies who, of your family and dependants, receives your estate when you die and what percentage they receive. 

If the intestate —

  1. dies leaving a husband or wife (whether or not other persons mentioned in item 2 or 3 also survive)
    1. the surviving husband or wife shall be entitled, absolutely, to all household chattels included in the intestate property;
  1. dies leaving a husband or wife and issue.
    1. where the net value of the intestate property (other than the household chattels) does not exceed the sum of $50 000 — the surviving husband or wife shall be entitled to the whole of the intestate property;
    2. where the net value of the intestate property (other than the household chattels) exceeds the sum of $50 000 — the surviving husband or wife shall (in addition to the household chattels) be entitled to the sum of $50 000, absolutely, together with interest on that sum in accordance with subsection (4) and, of the residue, the surviving husband or wife shall be entitled to one third and the issue shall be entitled in accordance with subsection (2b) to the other two-thirds;
  1. dies leaving a husband or wife and one or more of the following, namely, a parent, a brother or sister, or child of a brother or sister, but leaving no issue
    1. where the net value of the intestate property (other than the household chattels) does not exceed the sum of $75 000 — the surviving husband or wife shall be entitled to the whole of the intestate property;
    2. where the net value of the intestate property (other than the household chattels) exceeds the sum of $75 000 — the surviving husband or wife shall (in addition to the household chattels) be entitled to the sum of $75 000, absolutely, together with interest on that sum in accordance with subsection (4), and, of the residue, the surviving husband or wife shall be entitled to one-half and, as to the other half — (i) where the intestate is survived by one parent or both parents —
      1. if the value of that other half does not exceed the sum of $6 000 or if no brother, sister, or child of a brother or sister survives the intestate — the parent or parents shall be entitled (in equal shares where both survive the intestate) to that other half;
      2. in any other case — the parent or parents shall be entitled (in equal shares where both survive the intestate) to the sum of $6 000, absolutely, and of the remainder, the parent or parents shall be entitled (in equal shares where both survive the intestate) to one-half and the brothers and sisters of the intestate and the children of deceased brothers and sisters of the intestate shall be entitled in accordance with subsection (3a) to the other half; (ii) where neither parent survives the intestate — the brothers and sisters of the intestate and the children of deceased brothers and sisters of the intestate shall be entitled in accordance with subsection (3a) to the other half;
  1. dies leaving a husband or wife but no issue, parent, brother, sister or child of a brother or sister
    1. the surviving husband or wife shall be entitled to the whole of the intestate property;
  1. dies leaving issue but no husband or wife
    1. the issue shall be entitled in accordance with subsection (2b) to the whole of the intestate property;
  1. dies leaving a parent or parents and one or more of the following, namely, a brother or sister, or a child of a brother or sister, but leaving no husband or wife and no issue
    1. where the net value of the intestate property does not exceed the sum of $6 000 — the parent or parents shall be entitled (in equal shares where both survive the intestate) to the whole of the intestate property;
    2. where the net value of the intestate property exceeds the sum of $6 000 — the parent or parents shall be entitled (in equal shares where both survive the intestate) to the sum of $6 000, absolutely, and of the residue, the parent or parents shall be entitled (in equal shares where both survive the intestate) to one half and the brothers and sisters of the intestate and the children of deceased brothers and sisters of the intestate shall be entitled in accordance with subsection (3a) to the other half;
  1. dies leaving a parent or parents but leaving no husband or wife and no issue, brother, sister or child of a brother or sister
    1. the parent or parents shall be entitled (in equal shares where both survive the intestate) to the whole of the intestate property;
  1. dies leaving one or more of the following, namely a brother or sister, or a child of a brother or sister, but leaving no husband or wife and no issue or parent
    1. the brothers and sisters of the intestate and the children of deceased brothers and sisters of the intestate shall be entitled in accordance with subsection (3a) to the whole of the intestate property;
  1. dies leaving no husband or wife and no issue, parent, brother, sister or child of a brother or sister but leaving a grandparent or grandparents
    1. the grandparent or grandparents shall be entitled (in equal shares where more than one survive the intestate) to the whole of the intestate property;
  1. dies leaving no husband or wife and no issue, parent, brother, sister, child of a brother or sister, or grandparent but leaving an uncle or aunt or a child of an uncle or aunt
    1. the uncles and aunts of the intestate and the children of deceased uncles and aunts of the intestate shall be entitled in accordance with subsection (3a) to the whole of the intestate property but in applying that subsection for the purposes of this item a reference in that subsection to a brother or sister, or a child of a brother or sister, of the intestate shall be construed as a reference to an uncle or aunt, or a child of an uncle or aunt, of the intestate, as the case may be;
  1. dies leaving no husband or wife and no issue, parent, brother, sister, child of a brother or sister, grandparent, uncle, aunt or child of an uncle or aunt
    1. the whole of the intestate property passes to the Crown by way of escheat.

If you do have a valid Will it is important to ensure that it is up to date at all times. Even if you leave a valid Will you may also find that a partial intestacy can still occur. This usually happens when a person fails to dispose of the entirety of his or her estate under the Will. This is a common occurrence with DIY Will Kits which do not allow much room for the testator to ponder or include these considerations.

For example, the popular Collins Will Forms can be purchased at most newsagents or post offices for approximately $5. These are very basic Wills with very basic instructions. These could confuse rather than clarify. Issues also relating to children, taxation, superannuation, and executors aren’t adequately covered.

If you think spending that little bit more and getting an Australian Will Kit for about $30 is better, you’d be mistaken. Recent reviews of this Will Kit have found that there is no space for witnesses to sign each page, so the Will may be considered invalid, the discussion about who could challenge the Will is not entirely correct and superannuation issues are not adequately covered.

The Wills & Estate Team at Butlers has the skills and experience to assist you in planning for both the present and the future.

Please contact us to make an appointment to see how we can help you ensure your estate is efficiently managed to achieve the results that you want.

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Thursday, 02 April 2020