TO DIE “Intestate” is to die without having made a Will. That means the distribution of your estate would then be in accordance with the law, and potentially against your wishes.
And that’s because, without a Will to provide a clear allocation of your assets and property … estates are divided according to the applicable state or territory legislation.
The legislation provides for the distribution of an estate in light of considerations such as … whether the deceased leaves any partners, children, living parents, brothers, sisters, or children of brothers and sisters.
The allocation to each category is then dependent on the size of the estate and the other potential beneficiaries.
There are Legal Definitions
In the legislation, a ‘partner’ means a spouse or a domestic partner. Accordingly, if you were living with your partner for two continuous years prior to your death … then they may have a genuine claim on your estate, if you fail to execute a Will.
This may be alarming for couples who are unknowingly living in what is deemed by law to be a de facto relationship — because their estate is vulnerable to be distributed to their partners, over other potential beneficiaries.
If you would like to make special provisions for (or leave certain property to) your loved ones … having a Will is a necessity.
A professionally-drafted Will not only ensures clarity, but also allows for the appointment of an administrator — to make decisions for your estate and distribute the estate in accordance with your wishes. Wills should be updated whenever your circumstances change, in a manner which may affect its contents.
For example: If you were to marry, divorce, have a child, have grandchildren, retire or move in with your partner … you would need to update your Will to accommodate for those changes.
An additional key decision that should be made is who will be the testamentary guardian for your children. And you should seek their consent, before assigning them in your Will.
It is highly recommended that you consult a professional when drafting your Will — to ensure that it meets all the necessary requirements.
Bottom Line: Your Will must be in writing, executed by the testator (or testatrix when referring to female making a Will) in the presence of two or more witnesses present (at the same time) and attested to by each witness, in the presence of the testator.
If you are unsure whether you have a Will that adequately reflects your last wishes, you should certainly consult with a lawyer to update (or maybe even create) your Will.
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