One of the most important life decisions that people make is who to leave their estate to after they die. The drafting of a Will is much more than leaving your prized possessions to your loved ones, it can also have far greater effect.
If a Will is drafted correctly it can save your estate (and your loved ones) much heartache by resolving potential disputes prior to them arising, and can save your estate significant money in tax.
But what happens to your estate if you don’t have a valid Will? Well the answer to that is found in the Administration Act 1903 (WA).
A person who dies intestate (without a Will) has their estate administered pursuant to the Administration Act. The Act states that a surviving spouse, parent or children of a person who dies intestate can apply to the Probate Registry of the Supreme Court of Western Australia for Letters of Administration.
Once Letters of Administration have been granted, then the Administrator, the person who applied, has the same powers and rights as an Executor, and all of the personal and real property of the deceased vests in the Administrator.
The next step is to determine who gets what share of the estate. The Administration Act has a formula which sets out what proportion of property goes where.
In instances where the deceased is married or has a de facto partner and children (even under the age of 18) then where it would usually be expected that the estate would be left to the spouse, under the administration Act it doesn’t. Under the Administration Act the spouse would receive the first $75,000 and the rest would be split equally between the spouse and the children.
Accordingly, if you wish your sentimental property, antiques or family heirlooms to be left to specific people, maybe children or grandchildren, then unless you have made a Will and specified these bequests, then your family will decide who gets what property. We find this is one of the main reasons why people make Wills.
There are numerous advantages to making a Will, but one that lawyers see most frequently is the litigious dispute over estate’s when no Will has been made.
HHG Legal group through its Wills and Estate Planning team is able to help people draft Wills and make Estate Planning decisions including helping to reduce taxation payable out of your Estate and through its Commercial Litigation team are able to help resolve any disputes that may arise as a result of Wills not being made.
This is general information only, and does not constitute specific legal advice. If you would like further information in relation to this matter or other legal matters please contact our office on Freecall 1800 609 945 or email us.