A Will deals with the appointment of the person(s) who you wish to manage your estate (your Executor) and how you wish for your estate to be divided in the event of death. Even if think you don’t need a Will or if the topic is something you prefer to avoid, the preparation of a Will is an important step that can save your family a lot of stress, hassle, disagreement and even money.
If someone dies without a Will, they are said to die 'intestate'. This means that the estate would pass in accordance with the hierarchy created under the Succession Act. This hierarchy is generally the following order:
There are several other rules under the Succession Act that will affect this order, some of which are addressed below.
If there are no living relatives of the deceased, then the estate may ultimately pass to the Government.
If you don’t have a Will, you also won’t have direct control over who becomes your Executor. Instead, the court will appoint an Administrator who fulfills a similar role, but may not be who you would intend to conduct that role.
If you die with a spouse but you also have children from previous relationships who are not related to your spouse, then your spouse receives all personal effects, a statutory legacy (being a sum of money specified under the Act) and one half of the assets of the estate left over after the legacy is paid.
Your children (including those you have with your current spouse) would receive the other half of the assets of the estate left over after the legacy is paid.
There can be further issues and further arguments among family members if the estate is not large enough to pay the statutory legacy with any amount remaining. In that case, under the laws of intestacy, your children would not receive anything from your estate.
It is not uncommon for a divorce not to be finalised before a new de facto relationship is entered into. That is, you may still be legally married when you commence a new relationship.
If there are multiple spouses upon death, then the spouses may need to agree to a proposed distribution, apply to court to determine the distributions, or share the estate equally. Depending on the relationship of the multiple spouses, coming to an agreement in relation to the distributions can often be difficult and could result in costly court proceedings.
There are several key issues with intestacy which could be avoided if you prepare a Will.
The act of preparing your Will is the act of making a clear choice as to who you wish to benefit from your estate and who you wish to manage your Estate.
Without making a Will, it is left to chance who would manage your estate and benefit from your estate, depending on who your closest relative is at the date of death.
To get started in making your own choices about the distribution of your estate, contact one of our estate planning lawyers or complete our secure online estate planning questionnaire to get the process started; in your own time and place.
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This article is of a general nature and should not be relied upon as legal advice. If you require further information, advice or assistance for your specific circumstances, please contact E&A Lawyers.
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