We may be leaving it all behind, but there's work ahead for our families and executors in distributing our worldly goods when we die, as Mark van den Berg explains.
We read a lot about legal wills and how important they are. But we don't often read about what happens after someone dies – from a legal aspect, that is. Understanding what your family will be required to do when you do quit this life may affect how you arrange your estate.
What is a will?
A will is a document that contains your instructions on how you want your property (including assets such as land, a home, shares, cash etc.) to be distributed after you have died. It can also set out who you want to look after any children who are minors if the unthinkable happens to you and your partner – an unhappy thought, but an essential consideration if you have young children.
What happens after you die?
Your nominated executors are responsible for ensuring that your wishes are carried out. In the vast majority of cases, this means dealing with your assets. The most common assets in a typical estate are bank accounts, shares, motor vehicles, real estate, superannuation, life insurance policies and personal possessions. Your executor's job is to have these various assets sold, or transferred into the name or names of the beneficiaries listed in your will.
Now comes the hard part. Your executor will need to contact the company, body or government department that controls the title to those assets and request that they transfer the asset either into the name of the executor if the asset is to be sold, or directly into the name of the beneficiaries. In some cases, the controlling body will oblige after you send them a copy of the will and death certificate. But in other cases, the controlling body will ask for a Grant of Probate from the Supreme Court before they will transfer the assets. The type of asset and whose name or names are on the title of the asset will determine if a Grant of Probate is required. The reason they ask for this document is to protect themselves against being sued by someone who may have a financial claim of some kind against the estate.
It is worthwhile noting that there are no death duties in Australia. The application for a Grant of Probate is not about the State collecting money. It is a ‘due diligence' process designed to ensure that your estate is properly administered.
Click NEXT to find out about joint assests and what happens if you die without a will
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