How to protect your loved ones after you’re gone

We look at the consequences of passing away without a will

As the old saying goes, there are only two things certain in life: death and taxes.

Unfortunately, most of us spend too much time worrying over the latter and not enough discussing the former, uncomfortable though it may be.

But while no one enjoys contemplating the end of their life, planning for your death is just as important as managing your finances, if not more so.

It’s difficult enough for families to cope with the loss of a loved one, but the added burden of dealing with the remaining estate can make an emotional time even more traumatic - which is why drawing up a will is essential, regardless of your age and the state of your finances.

According to Legally Yours Estate Planning Lawyer Kimberley Smith, without a will, those left behind will face an abundance of challenges in attempting to administer your estate.

You might think you have too few assets to warrant the time and cost required, but if you want to avoid unnecessary distress for your loved ones, including the furry kind, it’s time to take action. Here’s what you need to know.

Don't have a will?

What happens now?

If you pass away without a will, the law will determine who can be appointed to administer your estate and how it will be distributed once debts are paid out.

Legislation outlines how the distribution is to be made and to whom.

Administrators have the right to make allowances for persons who might have been left out, which could result in a smaller share being provided to those you love the most. Similarly, others may receive more than you would have otherwise wanted.

What steps should remaining family take?

Your next of kin will need to apply for Letters of Administration, instead of a Grant of Probate as is the case where a will exists.

The application process for Letters of Administration can become complicated as the applicant may need to prove to court they are the right person to apply.

Unexpected challenges

Some relationships may not be recognised under the legislation, such as a de facto relationship of less than two years where there are no children.

If you have a separate bank account to your spouse and you haven’t provided them with your online passwords, they won’t be able to access the funds until the process is complete.

If the next of kin is a minor or otherwise incapable, the court may require the administrator to obtain an administration bond (a guarantee by a third party) to cover any loss caused by improper administration.

The likely outcome

Usually the legislation will direct that personal effects would be received by the spouse and the balance of the estate split between the spouse and children.

If you do have a will

Where is it?

It’s important that your original documents are stored somewhere that’s both safe and accessible.

Most solicitors will store your will for you and provide you with a certified copy, which should ideally be safely filed both digitally and in hard copy.

Some states have a will registry where original wills can be lodged, or you can hire a safety deposit box from a bank.

Retaining the original document at home is risky. If your will is lost or damaged, difficulties will arise down the track when it’s needed.

Executors and Powers of Attorney

An executor is the person appointed to administer the estate according to your wishes, and is an essential part of making a will.

An executor may be required to sell assets, invest money, complete tax returns and pay debts.

Your executor should be someone responsible and capable of undertaking such an important role, especially in complicated cases where the appointment could be long term.

A Power of Attorney is not essential and is appointed in a separate document to your will, as this person’s duties are only relevant during your living years. A Power of Attorney is authorised to act on your behalf in financial or health matters, if you are otherwise unable to do so.

What happens after a death?

Your executor will need to apply for a Grant of Probate in order to begin administering your estate in accordance with the will.

An executor is entitled to obtain legal and accounting advice to assist them throughout the application process and dealing with any tax implications for the estate.

Accessing the will

No one, family or otherwise, has the automatic right to access your will, without your express written permission.

It is crucial though that your executor knows where and how to access your will. It’s a good idea to provide your executor with a copy of your will which will include the contact details of the solicitor storing it.

What about super?

Superannuation is usually not included in the distribution under a will, but rather the superannuation legislation and requirements of individual funds dictate how it will be distributed.

Special clauses can be included if you wish to bring superannuation into the will but it’s a good idea to seek financial advice first to ensure there are no tax implications.

Costs

Costs can vary depending on the type and complexity of the will, as well as the estate value.

Disagreements

If there is a disagreement over the will which can’t be sorted out between the parties, then legal representation will be required.

The best way to reduce the chances of a disagreement is to ensure your will is carefully drafted and regularly reviewed and updated to reflect your current circumstances.

Sentimental items

Wills generally include a clause that leaves items other than cash and large assets to a specific person or group of people. It will then be up to those individuals to divide the items.

You can include instructions for specific items if you wish.

Whether you’re young and single or have children to consider, creating a will not only ensures your estate is distributed according to your wishes, it drastically reduces the stress and trauma for the family you leave behind.

If you do have children, having a will allows you to appoint a legal guardian if both you and your spouse pass away at the same time.

Without a will, there’s no guarantee your loved ones – and your affairs - will be taken care of in the manner of your own choosing.

What you need to know about organising a funeral

Planning the memorial of a loved one is a momentous responsibility and an emotionally draining experience, so any decisions you can make prior to the day’s arrival, will make all the difference to those left behind.

Things to consider:

  • Burial or cremation?
  • What do you want done with your ashes?
  • What kind of service do you want (religious or secular)?
  • Do you want particular prayers or readings, hymns or songs used at the service?

The funeral director will ask for:

  • the deceased’s full name, place of birth, occupation and address
  • marriage details (including previous marriages), including date and location and the personal information of the spouse
  • children’s name, age and gender
  • parents’ full names (including mother’s maiden name), gender and occupation.

Decisions to make:

  • choosing a coffin and flowers
  • will there be a condolence book
  • how many funeral cars will be needed
  • funeral service announcements
  • who will write and read the eulogy
  • who will be the pallbearers
  • exactly who needs to be notified of the funeral time and place.

And straight after all of those decisions, it will be time to organise the wake.

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* https://www.moneysmart.gov.au/life-events-and-you/over-55s/paying-for-your-funeral

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