5 Things I Hate About Not Having A Will16-May-2023 Property Estates By Jamal Bakalian
5 Things I Hate About Not Having A Will
Senior Solicitor at Streeterlaw, Jamal Bakalian, provides an exclusive in-depth step by step guide to 5 specific things that could go wrong if you or a loved one passes away unexpectedly without a Will in place.
There are various things that could go wrong if you fail to leave a will clearly identifying the ways in which you would like your Estate distributed. Such a situation is more common than you may realise. Looking at it from different perspectives, here things that can go awfully wrong if a Will has not been left behind.
Not Having A Will Scenario 1: A double whammy – married couple die within a few years of each other – NEITHER had a Will in place.
(a) In one particular case that we had recently; an elderly man passed away without a Will.
(b) During the final years of his life, he was living in a Nursing Home and he was under the Financial Management of the NSW Trustee and Guardian.
(c) As a result of there not being a Will, the family of this elderly gentleman was left with no choice but to apply to the Supreme Court of NSW for what is called “Letters of Administration”.
(d) The complicating factor was that when this gentleman’s wife passed away a few years prior, she had not left a Will either and in that scenario, for her husband to have obtained legal ownership of the marital home, her family had to file a ‘Notice of Death’ which they did not do.
(e) This meant that the marital home technically did not pass in ownership to the elderly gentleman and therefore he did not technically own the home when he died.
(f) Aside from the property complications, the fact that this gentleman did not have a Will also complicated matters from a banking perspective. Without a Will, the banks needed to wait for Letters of Administration to be filed with the Court which significantly delayed the process of consolidating the Estate and therefore distributing it to the beneficiaries.
(g) The family of the deceased were left in a bit of a pickle as to how to transfer the property into their father’s name.
(h) Streeterlaw stepped in and were able to provide evidence of the parent’s marriage. We were eventually were able to liaise with Land Registry Services NSW, and through various legal avenues, the marital property was finally disposed of and the funds were distributed amongst the beneficiaries.
(i) The lesson learnt here is to always leave a Will!
Not Having A Will Scenario 2: Beneficiary is under legal age, living overseas and her father passes away without a Will.
(a) Another situation that we encountered recently involved the parents of a 14- year-old girl who were divorced at the time that her father passed away.
(b) The young girl and her mother were living in the United States after the divorce and her father resided in Australia, owning property in Australia.
(c) The young girl’s father passed away without leaving a Will and as such, according to specific laws of intestacy with no Will that say otherwise, the young girl had to wait until the legal age of 18 to obtain access to any of the funds she would inherit as her father’s next of kin.
(d) This complicated matters for her as she wanted to have access to those funds to pay for her schooling in the United States.
(e) As a result of her father not leaving a Will, the deceased Estate became vulnerable and was exposed to the deceased’s ex-wife making a claim against it – and using the excuse that she did not obtain any property from her divorce with the deceased and as a result wanted access to the Estate’s funds. She accordingly made and won a Family Provision Claim.
(f) If the deceased had left a Will, he would have been able to properly provide for his daughter including potentially leaving her funds in a trust that could have been access by her mother for educational purposes and ultimately, he would have avoided the Family Provision Claim brought by his ex-wife.
(g) The lesson learnt here is to always leave a Will!
Not Having A Will Scenario 3: Spouse of the Deceased has NO idea what assets the deceased held.
(a) Recently we came across a situation where the deceased had died without a Will and the surviving spouse had absolutely no idea what assets constituted the Estate.
(b) Luckily in this situation, part of the deceased’s Estate was being managed by the NSW Trustee and Guardian who had kept a running list of assets that we obtained access to in order to help the surviving spouse.
(c) It is more common than you may think for a surviving spouse to simply have no idea where and what assets have been left behind.
(d) Of course, the lesson learnt here is to always leave a Will!
Not Having A Will Scenario 4: A parent has passed away overseas, leaving assets in Australia but did not leave a Will.
(a) In this particular instance we had an elderly client who passed away in Nouméa and did not leave a Will in relation to how her assets should be dealt with in Australia. She owned significant property in Australia and there are specific laws we must follow in relation to foreign persons inheriting property in Australia, so this is a particularly tricky area of law.
(b) As such, Streeterlaw had to prepare Proof of Death documents and luckily the assets were known by most of the beneficiaries, however, all of those beneficiaries lived in New Caledonia. The primary assets that the Deceased had in Australia had to be sold and the beneficiaries were heavily taxed. Some elements of this situation could have been made less burdensome if the Deceased had left a Will.
(c) Particularly when dealing with overseas assets, it is vitally important that an individual procures a Will to dictate how those assets are to be handled and distributed.
(d) The lesson learnt here is to always leave a Will!
Not Having A Will Scenario 5: There is significant family conflict between the beneficiaries and no Will in sight!
(a) We acted for a particular client whose sons had extreme conflict amongst each other and they were all beneficiaries of their father’s deceased Estate.
(b) Their father did not leave a Will to dictate how the assets should be distributed and as a result, the Administration of the Estate was particularly complicated in that several of the siblings wished to make claims against the Estate.
(c) As a result, without lengthy and costly litigation, there was no clear path forward that the siblings could agree on as to how the assets were to be Distributed. The legal fees associated with making and defending the various claims against the estate, ultimately drained the Estate and aggravated the hostility between the family members.
(d) Particularly in large families, it is vitally important that parents leave a Will behind to not only dictate how the assets are to be divided but also to allow a vehicle through which to communicate their wishes and the reasons for their decisions (you can write a letter to accompany your Will which explains why you have made the choices you made).
(e) The lesson learnt here is to always leave a Will!
If any of the above scenarios raise red flags for you or your loved ones and you are becoming increasingly concerned about the lack of a Will – Contact Us, or phone 1300 293 593 for an obligation-free Consult today. Alternatively, leave a message for one of the team on our Facebook Page
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