The Importance of Having a Will
A Will is a legal document that formally records your wishes as to the management and distribution of your estate following your death. If you die without a valid Will, your estate is referred to as an “intestate” estate and is distributed according to the laws of intestacy, which may not reflect your intentions or the needs of your loved ones.
What happens if I don’t have a Will?
Currently, and until 1 January 2025, the Administration and Probate Act 1919 (SA) (“the Act”) sets out how an intestate estate in South Australia is to be distributed, and who can apply to administer an intestate estate.
For example, if you have a spouse and children and you die without a Will, section 72G of the Act dictates that a legacy of the first $100,000.00 of your estate is to be paid to your spouse, with the remainder of your estate to be divided equally between your spouse (as to one half) and children (as to the remaining half). From 1 January 2025, the distribution would instead be pursuant to Section 105 of the Succession Act 2023 (SA) with the same outcome with the exception of the amount of the legacy to the spouse increasing to $120,000.
In this same example, if you happen to own the family home in your sole name and have no other substantial assets, the laws of intestacy could trigger the sale of the property in order to extract the first $100,000.00 (or $120,000 after 1 January 2025) in monies for your spouse, and to allow for the distribution of the balance between your spouse and children. Unless your spouse can afford to pay into the estate the difference between the value of the property and their interest in the property (pursuant to the laws of intestacy), this could not only significantly disrupt the living arrangements of your family, but also leave your spouse with significantly less funds to purchase a residence of the same quality.
Protecting Your Family
A well-drafted Will and advice on structuring assets can protect against the above scenario, in allowing you to dictate how your assets should be distributed and specify any other wishes you may have, such as funeral arrangements or who you appoint as guardians of your minor children.
A Will can significantly reduce the emotional and financial stress on your family during a very difficult time. It simplifies the administration of your estate, and in most cases reduces the likelihood of disputes and legal complications.
Wills for Complex Situations or Specific Financial Objectives
Additionally, a well-drafted Will and tailored estate planning advice can help minimise the impact of taxes and ensure that your estate can be managed efficiently. For larger estates or those with specific asset protection concerns or financial management objectives for beneficiaries, a Testamentary Trust Will, created in collaboration with your accountant and financial advisor, can provide significant value. At Varga Lawyers, we are passionate about how testamentary trusts can assist in such scenarios and how their benefits can be maximised when prepared in collaboration with your accountant and financial advisor.
For those with blended families, complex financial situations, or specific wishes about how their estate should be managed, having a Will is crucial. By taking the time to create a Will with a specialist Wills and Estates lawyer, you can provide peace of mind to yourself and your loved ones, knowing that your affairs are in order and your legacy is protected.
Take Control of Your Legacy Today
If you have not yet made a Will, now is the time to contact Varga Lawyers to ensure your wishes are properly documented and legally sound.
Article by Quynh Nguyen, Solicitor and Shannon McMenamin, Senior Associate.