What is the difference between Wills and Probate?
A will is a legal document that enables you to determine how your ‘estate’ is to be distributed after your death. This includes your money, property, shares, investments and possessions. It’s usually passed to a close family member or shared according to your wishes.
After someone passes away, an individual will need to take responsibility for the will and ‘administering the estate’. This person is known as the ‘executor’ and is normally named within the will. Learn more about Probate.
What happens if you don’t have a Will?
If you die without having a valid Will, the legal lingo is that you have died intestate, which means your assets will be distributed according to a fixed statutory order, which may not be according to your wishes. If you do not want the law to make this decision then you need to make a proper will.
If you want to choose:
- who receives your hard earned assets;
- who will administer and manage your estate
- who will look after these assets until your beneficiaries attain an adequate age
- provide asset protection; and
- provide tax efficiency
Can you make a Will any way you like? The answer is “yes” but …
Unlike some other countries in the world, Australian Law allows for Testamentary freedom. This means the law does not dictate who has to receive some part of your assets. You can exercise this freedom by making a valid Will.
However, this freedom is not entirely absolute. The NSW Succession Act (and under the law of all other Australian Sates and Territories) allows some persons to make a claim against your Estate for “family provision”. Eligible persons may include spouses (including de factos), former spouses (including former de factos), children (including step-children) and in certain circumstances, persons who depended on you, such as grandchildren and other persons who lived together with you at any time. To find out more about such claims please read Estate Disputes or call Aitken Lawyers on (02) 8987 0000.