Checking in with loved ones over the Holiday period if they have a will?
With the Holiday period approaching very soon, it may be worthwhile reaching out to loved ones to check if they have a will and if so, the whereabouts of the original. It can be difficult to have this conversation as a will is private and confidential. But can it be too private? Increasingly there have been examples in our practice where the next of kin of the deceased person did not know if their parent or aunt or uncle etc had a will because it was never spoken about. Even if it was spoken about, the next of kin could not find the original will or know the name of the solicitor who prepared the will for the deceased person.
This article addresses why having a will is essential to ensure smooth administration of your estate with minimal complications and stress for your loved ones.
Will
A will is one of the most important documents you will have in your life regardless of how many assets you own. Even if you have few assets, potentially your superannuation death benefit (which may be substantial as it may include your accumulated super balance and life insurance) may form part of your estate if the Trustee of the superannuation fund determines it so.
In your will, you appoint a person or persons to act as your executor and name the beneficiaries of your estate. One of the most important duties of an executor is to arrange for your burial or cremation of your body after you die. Having a will provides the executor the authority to make the funeral arrangements with minimal complications.
Another important consideration, if you have children under the age of 18, is that your will can appoint a testamentary guardian or guardians of your children while they are under 18 ensuring minimal disruptions to their upbringing.
Applying for a grant to deal with your assets after your death
Where there are assets solely held by you such as bank accounts or shares over $15,000 or property in NSW, it is necessary for the executor to obtain a grant from the Supreme Court of NSW to deal with these assets. A simple probate application involves producing the original last will and an Affidavit of Executor annexing a certified Death certificate and Inventory of Property listing the assets of the deceased person.
Letters of Administration on Intestacy
Where there is no will, it needs to be determined who are the beneficiaries entitled to the distribution of the estate under intestacy. The Succession Act 2006 (NSW) provides the statutory framework of persons entitled to distribution to the estate. A beneficiary with a greater interest in the estate will be expected to apply for a grant of administration of the estate. That beneficiary may not be suitable to apply due to disability, age or capacity which involves further consideration on who is the next appropriate person to apply while providing evidence to the Court why that main beneficiary cannot apply.
An application for a grant of administration involves a solicitor making the necessary searches for a missing will by writing to banks, the NSW Trustee & Guardian, various law firms either in the suburb where the deceased resided or advertising for a missing will in the Law Society Journal. The applicant needs to provide evidence of persons entitled to distribution in the intestate estate of the deceased person by obtaining certificates from the Registry of Births Deaths & Marriages or the equivalent registry if outside of NSW. Further, the application needs to confirm if the deceased person was or was not in a de facto relationship. Notices will have to be served on all non-applying beneficiaries stating the name of the beneficiary who has applied for a grant of administration: alternatively the non-applying beneficiaries can give consent to the named applicant by signing a formal consent. This process can be lengthy and costly which would be avoided by having a will in place.
Takeaway message
It is time to have that difficult but gentle conversation with loved ones if you are catching up with them over the Holiday period. The conversation starters can be:
- There was an article by Carroll & O’Dea Lawyers about wills and the consequences for not having a will. I wonder if you have a will and where can the original be found if you pass away?
- I have made my will and the original is held in the safe custody of my solicitors which is a firm at….
- I have made my will and I have appointed …… as my executor. I have told him or her where the original is.
The loved ones may not be comfortable talking about their will and you should respect that. However, we suggest you let them know to contact their executor to advise they have been appointed as their executor and where the original will is held. Alternatively, they could make a note in their personal papers (ideally filed in a folder that is easily identifiable) that is easily accessible by a person in the event of their death so appropriate action can be made promptly to locate the original will without unnecessary delays or cost to the estate.