Why you need a Last Will and Testament

Dying without making a will (dying intestate), no matter how old you are, will leave your family and loved ones with unnecessary dramas and additional costs.

When a person who has a will dies, an application is made to the court in their state for a grant of probate. This means that the person's executor (nominated in their will) applies to the court for permission to administer the deceased person's estate according to their wishes. The court, after verifying the authenticity of the will and the executor, will grant probate and the wishes written in the will can be followed.

However, if the person who died did not have a will, an application is made for a court order that allows the person's estate to be administered in the absence of a will. The court will require proof of who the person's eligible relatives are. The person applying for the court order must provide appropriate documentation such as birth and marriage certificates, adoption certificates, and so on, to prove eligibility.

If the deceased has eligible relatives, a state based formula is used to distribute their estate among those relatives. Eligible relatives include: spouses (and former spouses), children (and step children), parents, brothers and sisters, grandparents, aunts and uncles and first cousins. Generally, the order of distribution of your estate is spouses, children, parents, brothers and sisters, grandparents, aunts and uncles, and lastly cousins.

If the person has no will and no eligible relatives (or they cannot be found), the estate will pass to the crown.

Complications often arise when the deceased has been in more than one relationship and/or have children to more than one partner. Also, if the deceased was in a de-facto relationship before they died, the court may not recognise the de-facto partner as an eligible relative unless certain conditions of the relationship can be proved, and that person may receive nothing from the estate.

Whenever there has been a breakdown in family relationships, it's likely that administering the persons estate will be a difficult period for all concerned. The whole process is greatly simplified when there is a valid will in the first place.

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