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Derek Legal Blog

Why you should have a professionally drawn will

How a legal system provides for two ways that property passes on the death of the owner of the property.

If at the date of the death you do not have a valid will, your estate passes on what is called an intestacy. This means that you have no choice in where your property goes, and it is decided by the intestacy rules. Presently, those rules provide for your estate to the disposed of. In this way, your spouse gets $150,000 plus household chattels plus one half or one third of the residue, with the balance going to your children. This means, if your estate consists of a home and little else, your spouse will not be able to reside in the home because the home will have to be sold to satisfy the intestacy rules.

Further, there are circumstances where there can be two spouses. That is, where there has been a marriage that has not been dissolved and the deceased at the time of his or her death was in a de facto relationship and in that case, there are complex distribution rules:

(a) Distribution in accordance with the intestacy rules;
(b) This will not prevent an application under the Family Provisions of The Succession Act 1981 by a dependent or child for provision out of the estate.

This mean legal costs will be incurred and as a general proposition they are born by the estate, thus reducing the pool available.

When a Solicitor draws a will for a client, that Solicitor will ensure that the client is aware of all the property to be disposed of. The Solicitor will also ensure the testator is aware of the persons with competing interests in relation to the distribution of the property, sometimes called the testator’s bounty.

It happens sometimes, that the testator wishes to leave somebody out of the will who would normally be expected to be a beneficiary of the testator’s bounty. In those circumstances, the Solicitor will ensure that the reasons for a disappointed beneficiary being left out are incorporated in the will or in another document. This is to try and prevent an application under the Family Provisions of the Succession Act 1981, which again will cause the estate to be diminished.

The cost of a properly prepared will is very small, particularly compared with the expenses that will be incurred if something goes wrong under either an intestacy or a will that is not properly drawn.

Contact Rita Derek of this firm for further advice.

Posted in: Derek Legal Blog at 29 August 18

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