10 Myths of Deceased Estates

Myth #1 – If I die without a Will it is no big deal.

Truth:  It can be a very big deal.  There are lots of reasons for having a Will including controlling who is appointed as Executor, controlling who your Estate is paid to, appointing a Guardian for children and lots of other good reasons.

Myth #2 – My Estate will definitely go to who I decide.

Truth: An estate can be challenged for a number of reasons.  In New South Wales, the Succession Act empowers the Court to make provision for eligible persons who have received nothing or inadequate provision from an estate.

Myth #3 – A Power of Attorney applies after I am dead.

Truth: No, a Power of Attorney applies while the Principal is alive.  The Principal is the person who makes the Power of Attorney.  The Power of Attorney ceases to have effect upon the death of the Principal.

Myth #4 – I don’t have a lot of assets so I don’t need to make a Will.

Truth: There are lots of good reasons for having a Will even if you do not have a lot of assets.  For instance, you can appoint a Guardian of minor children.  You can give particular items of personal property (such as jewellery) to particular persons.

Myth #5 – I can write my own Will using a Will-kit or an Online Template.

Truth: These are very dangerous.  It is important to obtain legal advice regarding your particular circumstances and how best to minimise the risk of anything going wrong in your estate.

Myth #6 – If I leave my child a nominal gift, for example $100, in my Will, my child will not be able to make a claim on my Estate.

Truth: This is untrue.  For example, the Succession Act in New South Wales empowers the Court to make provision for eligible persons who have received nothing or inadequate provision from an estate. 

Myth #7 – I can make a bullet proof Will (i.e. a Will that cannot be challenged).

Truth: It is impossible to guarantee that an estate will not be challenged.  There are many ways an estate can be challenged.

Myth #8 – I cannot make a gift to my executor.

Truth: A gift can be made to an executor.  It is important to obtain legal advice about the best way to do this.

Myth #9 – I can use my Will to make a gift of my superannuation benefits.

Truth:  Superannuation benefits do not as a rule form part of a deceased estate.  A nomination is normally provided by the superannuation account holder to the superannuation fund as to how benefits are to be paid upon death.

Myth #10 – Life insurance forms part of a deceased estate.

Truth: Similar to superannuation benefits, life insurance benefits do not as a rule form part of a deceased estate.  A nomination is normally provided by the insured to the life insurance company as to how benefits are to be paid upon death.

Stephen McAuley

McAuley Hawach Lawyers
11 Fennell Street, Parramatta NSW 2124
Telephone: (02) 9633 1826
Web: www.mcauleyhawach.com.au
Email: reception@mhl.net.au  

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