As you know, we here at Gouldson Legal assist clients with a number of different personal injury claims, including claims for loss of dependency. The legal process following the death of a loved one can be challenging, even more so without clear guidance and expert advice.
To provide further insight into what constitutes a Will and how to deal with the property of a loved one who has passed away, we have asked Hillhouse Burrough McKeown Lawyers, a firm we work closely with, to provide some insight.
Mary's de facto partner, Brian, lost his life in a workplace accident in Brisbane's south two weeks ago. At the time of Brian's death, Mary was a stay-at-home mum of two children, aged two and four years, and was financially dependent on Brian.
What is a Will?
A Will is the legal document that sets out how a person's estate will be distributed upon his or her death. For a Will to be valid, it needs to be signed and dated by the person making the Will and two independent witnesses.
For Mary to find out if Brian had made a Will prior to his death, Mary would need to contact Brian's lawyer or sort through Brian's paperwork at home. Mary could also discuss this with Brian's extended family to see if they know of any Will or any lawyers who may be able to assist her with locating a Will if there is one.
If Mary is able to locate Brian's Will then she will need to arrange a meeting with a lawyer to review the Will and obtain legal advice about her role if she is the appointed executor and her rights if she is named as a beneficiary or not.
If the Will appoints Mary as the executor then she is able to proceed with administering the estate. Mary will require assistance from a lawyer to administer the estate.
What happens if you don't have a Will?
If Mary is unable to locate a Will for Brian then he may not have had one. If a person dies without a Will then they are said to have died intestate. There are rules under the Succession Act 1981 (Qld) which govern how a person's estate is to be distributed if they do not have a Will. These rules are referred to as the intestacy rules – they set out who the beneficiaries of the estate will be and in what proportions the estate will be divided, i.e. what each person receives.
This means that your estate may be distributed to persons you would not have wanted to receive a benefit.
What forms part of an estate?
An estate comprises of all assets, liabilities and financial resources that the deceased held in their own name, or had a legal interest in, at the time of his or her death.
There have been a number of recent cases throughout Australia which have indicated that an executor (or administrator) has an obligation to apply for any superannuation interest that is not subject to a binding nomination to be paid to the estate.
The superannuation trustee will determine whether to pay the superannuation interest, including any death benefit, to the estate or to another eligible claimant. This is a new area of law so it is important to get independent legal advice before taking any step in relation to your superannuation.
How is a loss of dependency claim treated by the estate?
As Mary was financially dependent on Brian at the time of his death, she may be eligible to make a loss of dependency claim. Mary may also be able to make a claim on behalf of the two children. These claims are dealt with separately to the estate and any payment will be made to Mary and the two children as financial dependents and will not form part of the estate.
If Brian died as a result of someone else’s actions or inaction then Mary, as the executor, may also be able to initiate a personal injury claim for damages. Any monetary sum paid as a result of that claim would form part of the estate.
Why do I need a Will and how do I get one?
If you do not have a Will then your estate may be distributed to persons you would not want to receive a benefit, and those persons may receive a share that is more than, or less than, what you would have wanted.
There are various life events that may change how you want your estate to be distributed including: separation or divorce, marriage or entering a de facto relationship, the birth of children or estrangement from family members. It is for these reasons that it is important to have a regularly updated Will.
If you would like a Will prepared for you, or you have any questions, then please contact Amy Sanders‑Robbins of Hillhouse Burrough McKeown Lawyers on (07) 3228 6132 or email her to find out more.