A Will enables you to direct how your assets are to be dealt with after your death. Everyone, even with modest assets, should have a current and valid Will to ensure that their wishes are clearly expressed on their death. It is especially important for anyone living in a defacto/interdependent relationship or who is separated or divorced.

Keeping your Will up-to-date when circumstances change is the most important aspect of an estate plan. It should be reviewed at least every five years or whenever your circumstances change. This will include the birth of a child or grandchild, a marriage or divorce and even the purchase of large assets. It is highly recommended that you review your existing Wills in conjunction with your solicitor.

If you die without a Will, or an incomplete Will, you are said to have died ‘intestate.’ With no Will in place, your estate will be split based on the rules contained in the Wills and Probate and Administration Act of the state you reside in. This prescribes the precise order of persons who will share and benefit from the intestate estate.

The fundamental principle is that the estate will pass to the next of kin of the deceased in order of statutory priority, meaning that your estate may not be distributed how you would have liked. For additional information regarding the scheme of distribution laid down by statute law, you should consult your legal adviser.

Usually the next of kin (adult) with an entitlement to the largest share of the estate applies for letters of administration. By doing this he/she is applying to the court to be the administrator responsible for the administration of the estate in accordance with the statutory order of distribution of an intestate estate.

Overview of Estate Planning

A properly executed Will ensures that after your death:

  • Assets will be invested or distributed according to your wishes. This is the function of the executor/s. You should choose an executor who is unlikely to predecease you, who is readily available and if possible, is someone in tune with your wishes. It is quite common to have more than one executor appointed.
  • Funds are held in trust for beneficiaries. It is possible that some funds may be held for some time in trust for beneficiaries who have not yet reached the age you nominate for them to receive the bequest, for example young children or grandchildren.