The Importance of Having a Legally Valid Will
A Will Kit can seem like a cheaper alternative, but has the potential to become an expensive legal exercise…
The passing of a loved one is always a tragic event. Often, it can happen suddenly, and cause shock and distress to all those affected.
What can compound this distress is if the deceased has not left a will. This puts further strain on the surviving loved ones and relatives.
Not leaving a will can leave friends and family in the dark as to how you wish to be buried or cremated or any other arrangements upon your death.
What Happens If There Is No Will?
If no will is left, much of your estate may go where you didn’t intend it to. Furthermore, the process in dealing with an estate in which no will has been left to provide instructions. This is often a costly legal burden for those surviving the deceased.
South Australia has strict laws under the Administration and Probate Act 1919 regarding how an estate is to be distributed if no will has been left behind by the deceased. Generally, the whole of the estate will be given to the surviving spouse. If there is no surviving spouse, then the estate will be divided up equally amongst the surviving children. Contrary to popular belief, age does not play a role in the order of priority.
When there is no will, a legally entitled beneficiary can apply to the courts for a letter of administration to become the administrator of the estate. The administrator acts almost exactly as the executor. The administrator is bound by law to distribute the estate in a particular manner.
The process of getting a grant of administration from the court is difficult and time consuming. Add to that, the legal expenses incurred in getting the grant and then administering the estate. Due to there being specific legal provisions on how an estate is to be distributed when there is no will, there can be legal consequences if these provisions are not followed. A lawyer will almost always need to be involved in this process.
It can further cause tension and disagreement between friends and family of the deceased if there are competing applications to become the administrator. All of this can be avoided by having a carefully constructed legally valid will.
What Is a Legally Valid Will?
For a will to be legally valid there a certain legal provisions that need to be adhered to. Some of these provisions are:
The will be in writing
Be signed at every page by the testator
Intention by the testator that their signature give effect to the will
The testator’s signature is to be witnessed in the presence of two adults
The witnesses sign the will at every page in the presence of the testator
If those provisions are not followed, the will may be invalid. If it is determined your will is invalid, your estate will be dealt with as if you have no will.
A will should also leave clear instructions as to what arrangements are to be made upon you becoming deceased, including:
Whether you would like to be buried or cremated
The funeral home who you would like to arrange your funeral
Where you would like your remains
How you want your estate to be distributed and to whom
Who the executor/s are to be
Who the beneficiaries are to be
Any special requests you have regarding your estate
When someone leaves a will behind, there is usually one or more executors listed. The executor will then distribute the estate to the beneficiaries in accordance with the terms of the will.
The process of administering an estate when there is a will is clearer and less expensive. It provides certainty for you, and for your loved ones.
Changes to Your Will
Life happens, circumstances change, and if you need to make changes to your will, we are available to assist in a timely manner.
If you would like professional assistance in organising a legally valid will, then contact us at Camena Legal and one of our specialised lawyers will be happy to assist you.
For more information on any of the materials contained in this article, please contact us at [email protected] or on (08) 8310 0054.
