Thinking about what happens after you die can be daunting, but it is a necessary task if you care about what you’re leaving behind. Although you are not obligated to create a Will, failing to make one will complicate an already emotionally vulnerable time in the lives of your loved ones. So, to make an unpleasant task a little simpler, here are the answers to some questions you may have about Wills and Estate Law in Australia.
What happens if I die without a Will?
The exact laws that will apply in the case of a non-existent Will are dependant on the state in which in deceased lived, this is because Estate Laws are handled at a state level in Australia. This being said, the laws are consistent in that they are all quite complex.
As a general rule, when a deceased person doesn’t have a Will, the state will take control of asset distribution. In most cases, the partner of the deceased person will receive all their assets. If there is no partner, then the children will receive an equal split of all the assets. If there are no children, then all the assets will go to whoever the deceased had nominated as their next-of-kin. If there is no family, then everything will go to the state.
Although this seems relatively straight forward, it gets really complicated when we consider the fact that families and relationships aren’t simple. This redistribution process often gets challenged as the deceased may not have been on good terms with all their children, or their adult children may not want all the assets to go to the deceased’s new partner, or business partners may not want a share in the business to be given to someone without experience. None of this is taking into consideration the wishes of the deceased, who may have wanted to give their books to a close friend, or a significant share of their bank account to a charity.
Unfortunately, without a Will, there is little to no chance that everyone will be happy with how an Estate is redistributed, least of all the person who once owned it.
How do I make a Will?
Writing a Will is a pretty easy thing to do, but it is also an easy thing to muck up. To meet the formal requirements of a Will, it needs to be:
- In writing, your Will can’t just be a verbal agreement
- Intended to be you Will, it can’t be a randomly written thought, and there needs to be proof that you want this document to be your Will
- Signed by you on each page in front of at least two witnesses
- Dated at the time of signing
Even if you meet all these criteria, your Will could still be deemed invalid if the courts determine that you were forced to write what you did or were not capable of writing a Will (this will happen if you were under the age of 18 when it was written or deemed mentally unfit).
Once your Will is made, you need to keep it up to date. Major life changes, like marriages, divorces and children, should be accounted for, as should major changes in your assets.
The most effective way to ensure your Will is valid and covers everything you need it to is to hire a lawyer to help you draft it. A lawyer will pick up on things you may miss and can help you iron out complications which can arise from complicated relationships and fluctuating asset values.
What happens if my Will is challenged?
No matter how carefully you have drafted your Will, there is always a chance that it can be contested once you have passed away. Wills can be challenged when there is an allegation that the Will is not valid or because a dependent has not been sufficiently provided for. These matters will be handled in a court, the fees can be expensive and may be taken out of your estate. While a challenge is being carried out, none of the assets can be redistributed, so none of the beneficiaries will receive anything until all challenges are resolved. There isn’t much you can do to prevent someone contesting your Will, all you can do is make sure everything is in order while you are alive and discuss your wishes with your family so they know what to