The costs of not having a valid Will
by Jacqui Brauman
Estate planning will cost less than your average annual House and Contents Insurance, and you only have to do it every 5 to 20 years! But the consequences for your family and finances of not having a proper Will can be very costly.
In each State in Australia, there are laws which outline what happens to someone’s assets and liabilities if they die without a Will. It’s called dying ‘intestate’.
In most cases, the order in which assets get paid are:
- nephews and nieces
- aunts and uncles
However, this is over-simplified, and there are many variations of the above – like when there are multiple spouses, or when there are spouses and step-children.
It can be costly implementing and administering an intestate estate, because careful considerations need to be made, and it can take a lot longer.
If you don’t have a properly valid Will, the control of your estate can be in question. If you die intestate, then the person with the largest claim can make an application to administer your estate. This is the case even when there are multiple beneficiaries, and even when they are getting an equal amount.
So someone who you may not trust may end up acting to administer your estate, or someone in your family who you know will just stir up unnecessary trouble.
If you have children under 18 years, then you should want to be clear about who their guardian will be, if you are no longer able to care for them. No one else can automatically step in to care for them, unless you have made a guardianship appointment in your Will.
If you don’t appoint someone as the guardian, and there’s an argument over your children after you die, then the Family Court could decide. Or your children could end up under the care of the Department of Health and Human Services, in temporary care, or in the Children’s Court for care orders.
Wills that are done at home, through will-kits or just hand-written, often have many problems that could make them invalid.
I was directed to a fantastic article written about a year ago by Darryl Browne. He succinctly confirms that will-making is not like filling in a form, although will-kits and online wills try to fill this gap.
Darryl’s article highlight a few priceless comments by Supreme Court judges over the years:
“Homemade wills are a curse.”
“All of this could have been avoided if the testator had consulted a lawyer and signed off on a will which reflected his wishes. There is no question but that engaging the services of a properly qualified and experienced lawyer to draft a will is money well spent”.
“But way [this will-kit will] has been drafted is difficult, and the parties have been put to the trouble and expense of coming to the court seeking directions as to its proper interpretation. If the will had been drafted by a competent legal practitioner, this problem would not have arisen, and the parties would have been speared a great deal of trouble and expense”.
The finest being about a ‘friend’ who helped prepare a will: “The deceased either was offered, or sought, the assistance of an entirely unqualified person to prepare these three documents. That person would no doubt protest that she was just trying to help a friend. She was no help at all. A claim of good intentions is no defence. The fact is that unqualified people who intermeddle in the preparation of documents that have legal operation cause great harm. The defence for such officiousness is often one of trying to save the will maker money. That is sterile. This deceased could have had several wills professionally prepared for a fraction of the cost that has been imposed on her estate by this application. The legal system should not be blamed for that expense”.
Hence, it can be very time consuming to try to prove that an invalid Will is what the deceased person wanted, after they die.
Overall, each of the above problems could add thousands of dollars in legal fees to fix, and months of delay.
So it is best to take control while you are alive, and do a valid Will that will save you and your family money in the long run.