Intestacy

Contact us today for an appointment with one of our lawyers. They will be pleased to assist you to create a Will suited to your circumstances.

In Australia surveys show that about 60% of adults do not have a valid Will in place. If you do not have a valid, or up to date Will, you or family may experience the following difficulties:

• Your property may not go to the people you want it to go to. It may not go to them in the shares that you want it to.
• Your wishes as to who you would like to care for your children may not be known.
• Your children may receive their inheritance at the age of 18. You may wish to provide instructions as to how, and when, they receive their inheritance.

Your ‘estate’ is the word used to describe all assets and liabilities in your sole name, or in which you have a distinct interest, when you die.

Assets include items such as a car, house, money in your bank account, clothing, furniture, Refundable Accommodation Deposit, cash and jewellery.

A general rule of thumb is that you should review your Will every 3 to 5 years.

Certain major life events should always prompt you to review your Will to ensure that it is still valid and that it still suits your intentions. For example, you should review your Will if;

• An executor or beneficiary passes away
• Your family grows
• You would like to change your beneficiaries
• You have a new serious partner

The law in Australia is that unless you have a special clause in your Will, your Will is automatically revoked (ie cancelled) as soon as you get married or divorced.

Do not make handwritten changes to your Will- if changes are required, have it done properly by a trusted lawyer. If you make your changes, there could be serious and unintended consequences.

This document gives another person the authority to make financial and property decisions on your behalf. For example, using money in your bank to pay for your groceries, or assisting you with the payment of your bills, when you are no longer able to do so.

If you do not have an Enduring Power of Attorney, then an interested person (usually a family member) will need to apply to the State Administrative Tribunal (SAT). The SAT would then closely monitor the person to whom they give this power.

An Enduring Power of Attorney is a very powerful document so is important that the person you choose is trustworthy and capable of managing money. An experienced lawyer can help guide you in making this important decision.

This document gives another person the authority to make medical and lifestyle decisions on your behalf if you lose capacity to make those decisions for yourself. For example, if you become unwell and are too sick to decide what medication you will take, your guardian can decide for you.

If you do not have an Enduring Power of Guardianship, then an interested person (usually a family member) will need to apply to the State Administrative Tribunal (SAT). The SAT would then closely monitor the person to whom they give this power.

An Enduring Power of Guardianship is arguably the most important document to you as it concerns the care you will receive when you can no longer care for yourself. An experienced lawyer can help guide you in making this important decision.

Often referred to as a “living will”, this document allows you to make specific medical treatment decisions in advance. For example, you may decide in advance that if you are seriously ill or injured, you do not want to be resuscitated.

An Advance Health Directive is a powerful document as it binds medical staff, and your guardian or next of kin, to act as you have decided if certain medical events occur. An experienced lawyer can help guide you in deciding whether or not you should have this document.

A Will is not necessarily final. The law in Western Australia is that certain classes of people can challenge a Will if they think they have not received adequate provision for their proper maintenance, support, education or advancement in life.

Generally, the following classes of people can make a claim:

• Spouse or de facto
• Children
• Grandchildren
• Parents (in limited circumstances)
• Stepchildren (in limited circumstances)

An experienced lawyer will be able to advise you on whether you are able to make a claim and if you do how much for. Most of these types of cases can be negotiated without going to trial.

A Grant of Probate is a document which allows you to deal with a person’s assets after they pass away.

Not all applications are straight forward. It depends on the wording of the Will and on your personal circumstances.

Examples:

1. If there is no Will at all, then an application needs to be made to the Court to appoint an administrator who has the same kind of powers as an executor.
2. If an executor named in a Will has died, then an application will be made to the Court with the Will but asking the Will to appoint one of the beneficiaries as the executor.