It is advisable for everyone to have a Will. When you die, your assets (Estate) will pass to the people that you nominate in your Will. If you do not have a Will, you are regarded as passing INTESTATE (not interstate, as in another State) and a “league ladder” of beneficiaries, starting from your next of kin, may share your Estate. Rarely, in the absence of any close relatives, the Estate may be forfeited to the government.
For older people, it is also a good idea to have a Power of Attorney to allow a trusted relative or friend to have power to sign documents on your behalf during your lifetime should you become unable to do so. A Medical Treatment Appointment also allows you to appoint a person to assist you with medical decisions and treatment.
The assets that a person owns at the date of their death are collectively known as that person’s Estate. Typically, this will consist of a family home and a bank account. Sometimes there may be shares or an investment property, superannuation or an accommodation bond.
Wills and Probate
The law is concerned to ensure that those assets are dealt with in accordance with the person’s wishes, as expressed in a Will, or in accordance with the laws relating to intestacy (where there is no Will).
Therefore, no assets in the name of the deceased person can be dealt with unless the Executor named in the Will, or an Administrator in the case of intestacy, obtains a Grant of Probate or Administration. To obtain such a Grant, the Executor or Administrator must make an application to the Registrar of Probates and prove:
• Death, by filing a certified copy of the Death Certificate;
• The Will, by filing the original Will;
• The Assets, by filing an Inventory of Assets prepared after investigation of the deceased’s affairs.
Superannuation may be an asset of the Estate, or the deceased may have signed a Binding Death Benefit Nomination directing the benefit to one or more beneficiaries. Trustees of Superannuation Funds have wide discretion in relation to the allocation of benefits to family members.
Family Provision Orders
(or Part IV Claims)
Whilst the law recognises the basic right for a person to leave their assets to whoever they wish to by their Will, the law also recognises a competing obligation for that person to recognise a “moral obligation” to people who may be dependant on the deceased at the time of death. A husband/wife or children who can show a financial dependency on the deceased or a reasonable need for financial support will usually succeed in making a Part IV Claim for a share of the deceased’s assets.
The legal costs of making a claim are usually paid out of the Estate but frivolous claims will be rejected.