What are the differences with distribution of an Estate where there is a Will and where there is not?
A Will is a relatively simple document to prepare but is incredibly important to enable the distribution of an Estate in accordance with the wishes of the deceased.
There are strict, formal requirements in the preparation of a valid Will. Failure to comply with these requirements may render the Will invalid. In those circumstances, the distribution of the Estate will proceed as if no Will was ever prepared.
If there is no valid or any Will at all, then the laws of intestacy will apply as to the distribution of the Estate. In those circumstances, the Estate may be distributed in a way which conflicts with wishes of the deceased.
Additionally, there may be persons whom the deceased wished to benefit under their Estate, who will become disentitled by virtue of the intestacy laws which apply.
In the event that there is no valid Will, or any Will, then the law provides for the following:
- In the event there is a surviving spouse, the spouse is entitled to the whole of the Estate.
- In the event there is a spouse and child from a previous relationship, the spouse is entitled to receive the personal effects of the Estate together with a statutory legacy of $350,000 (adjusted by CPI) payable within one year of the date of death otherwise interest is also payable. The previous spouse is also entitled to half of the remainder of the Estate.
- All of the deceased’s children, including children from any previous relationships, are entitled to equal shares of the remaining half of the Estate.
- The previous spouse also has a “right to elect” to acquire property from the Estate if she wishes to purchase same.
- If there is more than one spouse, then they are entitled to equal shares of the Estate. There may be more than one spouse if the deceased was married and had a de facto spouse or more than one de facto spouse at the time of their death.
- If there are only surviving children, then they are entitled to the Estate in equal shares. This includes children adopted, but not step-children. If a child of the deceased has already died leaving children, that is grandchildren of the deceased, then the grandchildren are entitled to their parent’s share.
- In the event there are no spouses or children, the Estate will pass to the deceased person’s parents in equal shares.
- In the event there are no spouses, children or parents, the Estate will pass to the deceased person’s full and half blood brothers and sisters in equal shares.
- In the event there is no spouse, children, parents, brothers or sisters, the deceased person’s Estate will pass to the grandparents in equal shares.
- In the event there is no spouse, children, parents, brothers, sisters or grandparents, the deceased person’s Estate will pass in equal shares to aunts and uncles.
- In the event there are no spouses, children, parents, brothers, sisters, grandparents, aunts or uncles, the deceased person’s Estate will pass to first cousins in equal shares.
- In the event there are no such persons as identified above, the Estate will pass to the State Government.
The importance of a valid Will cannot be overstated. It provides an opportunity for you to determine how your Estate is to be distributed. It is the only opportunity for you to ensure that those whom you wish to benefit, do so. That is not to say that a properly prepared Will cannot be contested. It can be. However, by having an expertly drafted Will by the professionals at Brydens Lawyers, you can be assured that everything that can be done is undertaken on your behalf to fulfil your wishes with respect to the distribution of your Estate.
To make your Will or update same, contact Brydens Lawyers without delay on 1800 848 848 or visit brydens.com.au.
At Brydens Lawyers – #WE DO Wills and Estates.