5 beliefs that can be very costly to your Estate
You are probably aware that a properly drawn Will is designed to deal with your assets once you have passed away. Most Wills appear to be fairly straightforward, however, many Wills and what happens after you pass is commonly misunderstood.
Let me ask you five questions to see what you think:
- If the Executor is a family member, he or she won’t get paid – true or false?
- A beneficiary cannot challenge a Will – true or false?
- A beneficiary who has been excluded and reasons given for the exclusion cannot challenge a Will – true or false?
- A beneficiary can claim his or her costs of a challenge from the estate – true or false?
- The Government gets everything if there is no Will – true or false?
Answers – False, False, False, False, False
If an Executor accepts the role, he or she has the right to claim for his or her expenses and/or time spent in administering the deceased estate, particularly if the administration becomes complicated or burdensome. The Executor can either negotiate with the beneficiaries or can apply to the Supreme Court for commission to be paid.
Beneficiary challenging a Will
Many believe that a Will is the final word and become very concerned when they find out that it may not be. There are legal options for someone who expected to receive something or alternatively expected to receive more than what has been left to them. These people are referred to as a ‘disappointed beneficiary’. Before making a final decision about who is to receive what, you need to give careful consideration as to who you are responsible for and how much is enough. A disappointed beneficiary may be successful in challenging a Will if the Willmaker has not demonstrated that they have thought about that person and made (or not made, or not made enough provision for him or her.
Willmakers commonly exclude persons who ought to have been included in a Will. There may have been an argument and or the Willmaker has formed the view that he or she no longer has a relationship with that person, so ‘why should he or she benefit from my estate?’. A properly drawn Will should address the exclusion and the reasons for the exclusion, but it doesn’t stop there. A disappointed beneficiary upon hearing why he or she has been excluded or had a greater expectation as to the provision made for him or her, may be provoked into challenging the Will. An experienced estate solicitor, such as those at Bambrick Legal, can assist you to ensure that your Executor is placed in the best possible position to defend your Will if a challenge is forthcoming.
Costs of a challenge
Many disappointed beneficiaries believe that the estate will pay the costs of their challenge, even if they are unsuccessful. This is not necessarily the case. The cost of a failed challenge, in all but the most exceptional circumstances, is almost always paid by the disappointed beneficiary.
The Government get everything if there is no Will
In reality, the administrator (a bit like an Executor, but as there was no Will, they have a different title) is usually a descendant of the deceased, but sometimes can be the Public Trustee, can ask the Court to give that person the power to deal with the estate of the deceased. The administrator is bound by legislation to distribute the estate to the next of kin of the deceased. The next of kin is determined via levels of relatives of the deceased, regardless of where in the world they are living. If no relatives can be found, then and only then can the Government get its hands on everything.
Contact one of our friendly staff at Bambrick Legal today:
Enjoyed this article? Check out more: