Home Will & Estate Planning Let your last gift to your loved ones be a Will

Let your last gift to your loved ones be a Will

“I don’t need a Will. It’ll go to my family anyway.” This is something that is often said to an Estates Solicitor and may be partly correct in some situations. If you do not have a Will (referred to as dying intestate or intestacy), your estate may pass to your family in a way that…

But if this is your attitude, you also need to ask yourself “What will my family have to do to get my estate?”

Where there is a valid Will, the process for administering the estate can be relatively straight forward. It usually involves the Executor appointed under the Will sending the original Will to the Supreme Court of NSW together with their application for a Grant of Probate.

The Grant lets the world (but more importantly banks, real estate agents, superannuation funds, etc) know that the Executor is authorised to deal with the deceased’s assets. Once the assets are gathered in and the debts and estate expenses paid, the Executor can distribute the estate in accordance with the terms of the Will.

If the deceased was of the above mindset and never did a Will, the process can take longer and cost the estate more money.

The first hurdle is determining who has the authority to administer the estate. Most often, the person entitled to the greatest share of your estate is the person eligible to be the administrator of your estate.

Do you know who is the person that would be entitled to the greatest share of your estate?

In NSW, the law of intestacy states that:

Your spouse or de facto partner will inherit your whole estate if you die without children or with children of that relationship.
If you do not have a spouse or de facto partner, your children will inherit in equal shares.
If you do not have a spouse, de facto partner or children, your parents are next in line.
and so on.

With blended families becoming more common, it is important to know that if you die with a spouse or de facto partner and children from a previous relationship, the estate is to be distributed as follows:

the deceased’s personal effects,
a statutory legacy to the spouse/de facto (of approximately $490,000 as at July 2021),
half the remainder of the estate to the spouse/de facto, and
the other half of the remainder of the estate to be divided equally among the deceased’s children.

Determining who is entitled to the greatest share of the estate, and therefore who is eligible to be the administrator of the estate, is only the first part.

That person may need to apply to the Supreme Court of NSW for Letters of Administration. What is that? Letters of Administration is a grant from the Court appointing the administrator of the estate and authorising that person to deal with the deceased’s assets.

As part of the application process, the following evidence may be required:

proof that the deceased not have a Will, including swearing a statement that searches were made with the deceased’s bank or banks, solicitor and all law firms in the deceased’s local area, next of kin and through the deceased’s papers.
proof of marriage or proof of a de facto relationship,
proof that the deceased was divorced or was not in a de facto relationship at the date of their death,
proof of how many children the deceased had and who they are, and
proof of relationship if another family member is next of kin.

Proving a de facto relationship can be particularly difficult if the relationship is not registered. See separate article on this here.

What if more than one person is eligible to be administrator?

For example, say the deceased died without a spouse or de facto, leaving three surviving adult children. All of the children are eligible to apply for Letters of Administration and can make the application together.

However, if only one or two intends to apply, they will need to provide the signed consent of the other child or children. If the other child or children refuse to consent or cannot consent (for lack of capacity or being unlocatable), there are further steps the applicant will need to make.

This is only a brief introduction to the process of applying for Letters of Administration where the deceased died without a Will, but already you can see that there is more work and effort involved for the surviving family members.

Solicitors are able to assist with this process, determine who is eligible to be the administrator of the estate and who will inherit on intestacy, as well as what evidence the Court will require. However, not only will there be additional legal fees, there are also other additional administrative costs that will normally result in a greater loss to the estate than the cost for the deceased to have executed a Will when they had the chance.

Another comment Estate Solicitors will have heard is “What do I care? I’ll be dead.”

The answer is that you might not care, but it is very likely that your family will.

The greatest last gift you can give your loved ones is to have a valid Will. At a time of grief, when your nearest family and friends will be mourning your death, a Will that simplifies the estate administration process allows them to spend more time focusing on the important things and avoids the additional stress and hassle of an intestate estate.

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The information in this article is not legal advice and is intended to provide commentary and general information only. It should not be relied upon or used as a definitive or complete statement of the relevant law. You should obtain formal legal advice specific to your particular circumstance. Liability limited by a scheme approved under Professional Standards Legislation.