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Do you really need a will if you don’t have anything to give?


A will not only gifts money and property but also records whether you would like to be cremated or buried, give a family heirloom to a child or jewellery to your beloved.  It also records who your representative is (the person organising everything after you die).


Generally speaking (and the criteria changes all the time), if you have money in a bank account under approximately $40,000.00, your representative will not need a grant of probate or letters of administration to access the funds.  They will just need to sign a few papers, provide a death certificate, show some identification and, … off they go.


A grant of probate is an order from the Supreme Court allowing your legal personal representative (spouse, sibling or kids etc) to withdraw the money from your bank account, sell the assets in your name, pay your debts etc, when you have a Will.  Letters of administration are granted when you do not have a Will.  There are a few variations in what may be ordered and granted, but we will keep it simple for now.


If you have more than this amount in your bank account or other assets (eg house or land etc), your representative will require a grant of probate or letters of administration to deal with the funds/house/land etc.


If you do not have a will you are described as dying intestate.  This means that your assets will be distributed according to a legal formula in the Succession Act.


Usually, if you die intestate, your estate is distributed to your spouse in the first instance, then to any children you have, your parents, siblings, grandparents etc.  This may cause problems in blended families where you would like to give your children your assets as the formula is non negotiable.


In a matter I was recently involved in, the deceased died intestate, had separated but had not divorced her former husband some ten years before, resulting in the husband receiving a windfall.


Where relatives cannot be found, all your assets will pass to the State.  It is therefore useful to have a will if you do not have any family members but would like to leave the money or assets you have to a friend or to a charity etc.


In short, having a will ensures that upon your death your assets (and liabilities) go to who you want them to go to, instead of someone else dictating where they go.



If you would like to discuss the above with our principal, Kym Chapman, please contact her on 0416102577.

Kym Chapman & Associates provide legal advice for Northern NSW and have offices based in Byron Bay and Cabarita.