IF YOU DONT MAKE A WILL YOU COULD LEAVE A MESS BEHIND YOU

Many people procrastinate when it comes to making a will. This could prove traumatic for those you may wish to protect when you are no longer around.

If you die without a will the NSW Trustee and Guardian (NSWTG) may have to take over the administration of your estate if a relative cannot be found to take it on.

Even though the NSWTG is a government agency, it is not subsidised by the government. It is self-funding and therefore it is entitled to charge commissions and fees on the work they do. The fees charged to administer your estate could prove to be substantial.

The NSWTG would have to start from scratch. It has to make enquiries and advertise to locate who is rightfully entitled to a share of your estate. There are statutory regulations regarding the order of who will inherit and what proportion of the estate they will receive. If there are overseas relatives the NSWTG genealogy department would have to get involved. They may have to search birth, marriage, death and divorce events in every state and country the deceased and each relative lived. This research takes time and can span many years. If NSWTG are unable to prove that relatives are entitled then they have to apply to the Supreme Court for an order to distribute the estate This cost is also absorbed by the estate. In the meantime family members may be in great financial need.

MacDonald v Public Trustee [2010] provides a salutary (and admittedly, non-representative) example.

Theresa Stapleton died without a will in 1968. The Public Trustee took over the administration in that year. For forty years her relatives were in communication with the Public Trustee trying to get their entitlements. When the matter went to court the assets of the estate were no longer held by the Trustee and could not be located.

This “grim picture” of administration could have been avoided if Theresa Stapleton had made a will in the first place.