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Without a Will or Instructions: The Issues and Remedies

Katherine Hawes, Principal Solicitor

A comprehensive estate plan is pivotal in ensuring that your assets are distributed according to your wishes upon your passing. It typically includes a will, an enduring power of attorney (managing financial/decision-making matters), and an enduring guardianship (managing care/living will considerations). Many prepare a will to prevent their assets from being misallocated or seized by the government. However, the absence of a will or an enduring power of attorney often plunges families into legal and emotional turmoil.

The Critical Role of a Will in NSW

In New South Wales, the law provides mechanisms to deal with situations where an individual has passed away without a valid will. To safeguard your assets and outline clear directives for your family’s inheritance, establishing a valid will is crucial. According to the Succession Act 2006, a valid will must be written, signed with the intent of execution, and witnessed by two or more individuals in the presence of the testator.

Appointing an executor in your will is vital to ensure your estate is administered as per your wishes. For those with more complex estates, considering a testamentary trust could provide an effective management solution for your assets posthumously.

Dying Intestate: The Legal Labyrinth

Dying without a valid will in NSW results in your estate being subject to the rules of intestacy, complicating the distribution process. The application for Letters of Administration to the Supreme Court of NSW allows the next of kin to manage and distribute the estate, akin to the probate process. However, this can become a daunting task, especially with real property involved, leading to potential disputes, additional costs, and delays.

Incapacitation: The Overlooked Scenario

Beyond the distribution of assets, an accident or illness that leads to incapacitation highlights the need for an enduring power of attorney and guardianship. These legal documents ensure that your financial affairs and care decisions are managed according to your preferences during times you cannot make decisions yourself.

Estate Planning Made Simple

At Digital Age Lawyers, we streamline the estate planning process by providing:

  • A comprehensive estate planning checklist.
  • Initial consultations to tailor advice to your specific needs.
  • Drafts of crucial documents for review.
  • Final documents preparation and signing.
  • Secure storage of original documents.
  • Soft and emailed copies for your records.
  • Regular reminders to review and update your will.

Estate planning is not merely about distributing your assets; it’s about peace of mind, knowing that your wishes will be honoured, and your loved ones are cared for. Whether you need to prepare or update a will, apply for a grant of probate, or navigate the complexities of a loved one dying intestate, our Wills and Estates team is here to assist you every step of the way.

For personalised advice and assistance, contact us at 02 8858 3211 or visit our website at Secure your legacy and ensure your family’s future with the right estate plan today.