Intestacy VS Will – Importance of having a Will to protect your assets in Australia

Eales & Mackenzie Lawyers Melbourne

There are many plans you have made for you in your life, and these are personal business plans such as your investments, your business, your wedding, your life insurance, and other important issues. But it’s usually easy to forget that you should also draw a Will. It’s difficult for people to sit around and discuss their death, especially in many Asian cultures, but your Will might be one of the most important decisions you make in your life, and it can definitely avoid unnecessary difficulties for your surviving family members.

Different countries deal with administration and estate in a different way, so you must deal with your Australian assets on death by putting a Will in place.


Huge changes to Intestacy regulation in Victoria

If you died without a Will (Intestate), then your estate is administered pursuant to Administration and Probate and Other Acts Amendment (Succession and Related Matters) Act 2017, which came into force on 1 November 2017.

This Act significantly reshaped how the estate of the deceased will be distributed. If you failed to draw a Will, the provisions of the Act will dictate how your estate is dealt with, and accordingly, your family in place have no control over the distribution of your estate, which would not have been the case if you have had a Will in place. Under intestacy, your estate may well benefit someone that you do not wish to make provision for, and it also denies you the opportunity to distribute your estate in accordance with your wishes, such as making provision as to whom you would like to nominate guardians for your infant children.

A Will takes away all of those problems and makes the distribution of your estate and dealing with your assets a far easier task than if you died without a Will and left the resolution of your assets to be distributed according to the intestacy legislation.


What is a valid Will?

Execution must be done in accordance with the Will’s Act, and the Will must be in writing, signed by the Willmaker and witnessed by two adult witnesses. It is preferable that the Will is drafted by your lawyer so that your wishes are documented correctly.


When should your Will be reviewed?

You should review your Will when there is a change in your circumstances:

  • You are getting married or entering a domestic relationship/de facto
  • There is a dissolution of your marriage or domestic relationship
  • Your assets are growing, and you have brought new properties
  • creating trusts, going into business
  • the birth of your children and your grandchildren


Where should you keep your Will?

You should let your executor who will be looking after your estate know where your Will has been kept. Because if your Will cannot be located, you again might find yourself with an intestate estate.

We would recommend your Will be kept with your other important documents. At Eales & Mackenzie, we have a document retention service, where we will keep your will and important documents safely and give you copies of these documents for your records.

We suggest you contact us on 8621 1000 to let us assist you in drafting your Will and ensuring your assets end up going to those family members and friends that you wish to benefit.

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