It is important that you have an up to date Will. Many people think they don't need a will because of Intestacy laws, or because someone could just challenge the Estate, but these are both cumbersome options and will add costs to your Estate.
The last thing your grieving family needs is delays. The delays caused by obtaining Probate are bad enough, but obtaining Letters of Administration adds a whole separate level of documents, both in terms of the requirements of asset holders (like banks and superannuation companies) and the requirements of the Probate Registry (i.e. extra forms). Save your loved ones any further delay and frustration, do a Will.
If you have children
If you have children who are not yet 18 years old and both parents die then their assets will be held by the Public Trustee. The Public Trustee will charge fees on the value of the assets on a percentage basis, as well as charging fees every time they do something. The Public Trustee are also much more difficult to obtain money from before the children are adults than a Trustee that you might appoint and authorise to pay things like school fees and sports fees.
If you have children under the age of 18 and only one of you dies then the surviving spouse needs to file documents with the Probate Registry including notices served on the children. Because a child cannot accept service of the notice the children each need a Tutor appointed, an adult who can speak on their behalf. Some people don't want to act as Tutors because they don't want to take responsibility for the children and risk the children complaining to them later that they should have sued or sought more money. Even if you can find Tutors to act this is more time, more cost, more delays, and more people having to take time off of work to go and see solicitors to sort things out.
If you own property as joint tenants
Many couples own most of their property as joint tenants, such as their real estate and their bank accounts. If you have a Will and you own property in joint tenancies then you may not need Probate. If you don't have a Will and you have a significant amount in a bank account, say $10,000, then the bank may require you to obtain Probate because you are over a certain threshold where they are willing to administer the Estate without that document. You might avoid both delay and cost in this instance by having a Will.
If you own property not as joint tenants
If you own property not as joint tenants and there is no Will then there is no reason for the asset holder to pass the property to you. This might be a savings account, or a car and the associated car loan and insurance pay out. If there is no Will then you will most likely need to obtain Letters of Administration, the cost of which might nearly approach the asset you are trying to recoup.
If you have adult children
If you have adult children they might challenge the Will, that is challenge your spouses entitlement. This is particularly difficult to defend if you haven't properly prepared your documents in the first place. If you die young your adult children may be worried that your spouse will remarry, the assets will pass to the new spouse and the children will miss out altogether. You can make provision in your will for your spouse to have a life estate in the assets so that they have use of the assets but cannot gift your half of the assets to another person.
If your spouse remarries they will struggle to disinherit the new spouse as the new spouse could simply challenge the Will after your spouse dies. The new spouse can't challenge the trust (the life estate) though as this would amount to challenging your will and they are not an eligible person to challenge your Will. You will have protected at least part of the asset pool from the new spouse.
If you have superannuation
If you have superannuation then you need to sign a binding death benefit, which is a form that says who will receive your superannuation when you die. You need to sign this document every three years.
If your superannuation is passing to your children and you have a Will then you will appoint a Trustee under that Will and the superannuation can pass to the Trustee. If you haven't appointed a Trustee then the funds will either be held by the superannuation company in trust, or by the Public Trustee in trust, either way more fees will be charged.
What should I do?
Make an appointment to speak with one of our solicitors today about preparing your Will, Power of Attorney and Appointment of Enduring Guardian documents.
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