Wills & Estates - Kicking The Bucket

What happens when I pass?

Upon your death, the person you appointed to administer your estate – known as the executor must handle your affairs including:

• Finding your Will;

• Arranging your funeral;

• Getting your death certificate from NSW Registry; 

• Payment of your debts, income tax, duties; 

• Distributing assets in accordance with the Will;

• Obtaining a grant of Probate.

Interestingly and importantly, your Superannuation balance and any life insurance policy attached to your Superannuation does not form part of your estate initially, but may form part of your estate provided certain criteria are met. 

What do you mean by estate?

All assets including real property, bank accounts, shareholdings, motor vehicles and other property such as furniture and jewellery owned by an individual who has died is known as their ‘estate’.

The Succession Act 2006 (NSW) (“the Act”) outlines how estate matters are to be dealt with as well as rights to make claims against an estate where an individual is excluded or believes they are entitled to more assets.

Importance of having a Will

A Will is a written document that outlines how your assets and property are to be distributed upon your passing. 

Essential requirements of a valid Will are:

• It must be in writing – either handwritten, typed, or printed;

• It must be signed by you or by some other person in the presence of and at the direction of you;

• Your signature must be witnessed and signed by two other people on the Will and who are not beneficiaries under the Will.

What happens if I die without a Will?

An individual who dies without a Will is deemed to have died intestate i.e. without a will. 

In such instances, your estate will be distributed in accordance with Chapter 4 for the Succession Act 2006 (NSW). If you are married at the time of your death, and do not have a will, your assets will generally pass to your spouse. If you do not have a spouse then your estate will pass to your children, parents, siblings, and other relatives. 

Complexities arise if you have separated from your legal spouse and have a new de facto partner and when you have children from different relationships. 

If you die intestate and have no eligible relatives, your assets will pass to the State (Crown).

Preparing a valid Will is vital in ensuring that your wishes are upheld after your passing. 

What is included in a Will?

Your Will can include arrangements for:

• Final wishes and funeral arrangements: outline your preferences on service type, burial, and location, as well as how the funeral should be paid.

• Distribution and disposal of real property, term deposits, shares, insurance policies and other investments.

• Bequeathing motor vehicles, jewellery, clothing, household goods.

Simple Wills

A Simple Will bequeaths gifts in a straightforward manner for example leaving the entire estate to your small family.

It is suitable for estates where the Will-Maker does not want to dictate how their estates funds are distributed.

Complex Wills

There are situations when an individual needs to prepare a complex Will, for instance if they have a variety of asset types, such as property across countries, shares, and insurance policies, or if they have ownership of a business that may continue to operate after their death. 

Another scenario where a complex Will is valuable is if the Will-maker intends to create a testamentary trust for minor children, or a special disability trust for family members who need care and assistance.

Who gets my assets when I die?

The person or people you nominate to receive parts of your estate in your Will are known as the beneficiaries. This may be your spouse, children, friends, charities and/or not for profit organisations.

You can outline the distribution of your assets equally between multiple beneficiaries. 

If you decide for varying distributions between beneficiaries, you should provide reasons for the variation in supporting documents that are attached to your will, so that those reasons and evidence can be submitted if anyone contests your Will.

What if someone does not agree with my Will?

Under s57 of the Act, an eligible person may apply to the Supreme Court of NSW to seek a family provision order, for a share or larger portion of the estate of the deceased person. 

An eligible person can include a spouse, former spouse, de-facto partner, child or person who had a close personal relationship with the deceased. 

What if my circumstances change after signing my Will?

If your circumstances change, you should consider having a new Will drafted up to account for the change in circumstances. Otherwise, if you pass before the Will can be changed, the changes in circumstances may not necessarily be addressed or recognised.

Superannuation, Defined Benefit Schemes Monies & Life insurance

If you have any monies held in Superannuation funds and/or Defined Benefit Schemes, and any life insurance policies attached to these, then you will need to ensure that separate arrangements are put in place for your loved ones to receive these funds. 

If you need any assistance in preparation of your Will, administering an estate, advice relating to complex estate planning, or advice regarding Superannuation and/or Defined Benefit claims contact our experienced team led by Brendan Tynan-Davey & Wayne Davey @ Tynan Davey via info@tynandavey.com.au.

Disclaimer: The information contained in this article is provided as general information only. It is not intended to be legal advice and it should not be used or relied on as legal advice.