Blended families & intestacy - won’t it all just go to my spouse?
I get asked this question a bit, why do I need a Will, won’t it all just go to my spouse?
The short answer to that question is that even if it does go to your spouse you have created a lot of extra work and cost for them. Additionally, it might not.
In relation to blended families if there are children who are not children of the spouse and your estate is worth more than the threshold (and the threshold changes each year) then no, it will not all go to the spouse. Worse still, if you have children under the age of 18 years old, their share will be held by the Public Trustee. This could prove to be slow, frustrating and expensive, where as if you create a Will you choose the Trustee.
So the short answer is don’t do it to them, even if that is the outcome that you want don’t subject them to the additional paperwork associated with Letters of Administration, and don’t subject them to the additional cost.
Letters of Administration
Why wouldn’t you just let it go to letters of administration? There are a few reasons, but let me give you one. If there is a Will then it is possible that your spouse may be able to administer the Estate without applying to the Court. As a matter of law the Executor takes control of the Estate upon the death of the person, it is not the same with Letters of Administration because often it is not as easy to satisfy third parties who the Administrator should be (whereas a Will says who the Executor is).
There is actually no statutory requirement to apply for Probate in NSW, it is a question of whether the asset holders require it in order to release the deceased’s assets to the spouse. Often if you are the spouse and there is a Will you may not have to apply for Probate at all, so by having a Will you may be saving your loved ones from dealing with court processes and paying the filing fee.
The filing fee that you pay for Letters of Administration or Probate for an Estate worth $500,000 is $1,607. I also note that the Court determines the value based upon all of the Estate, so if you just need the court documents for one asset worth $30,000 you cannot just apply in relation to that asset. You have to disclose all assets in the Estate, including those that have already been transferred to the surviving spouse and any superannuation or life insurance, and the filing fee is set based upon the value of all the assets.
I need an Estate Plan
If you want to get your Estate Plan sorted then you could send me an email at janis@novuslawgroup.com.au to get your Estate Planning started.
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