If you die without leaving a Will, which means that no Executor will be appointed to administer your Estate, either a close family member (possibly someone with an expectation of benefiting from your Estate) must apply to the Court (the Supreme Court of NSW) for what are known as “Letters of Administration” granting the right to one or more persons to administer your Estate (this person is then called an “Administrator” rather than an “Executor”).

Failing that, or at least until an Administrator is appointed by the Court, in New South Wales and the Australian Capital Territory the Public Trustee (in NSW this is the NSW Trustee and Guardian) automatically steps into this role from the date of your death.

You might think that having an independent third party take on the onerous duties of administering your Estate could be a very good thing, and that may have been the case, if you’d had a current Will in place and there was therefore some indication of your wishes with respect to the distribution of your Estate.

However, if no such Will is in place, would you want a disinterested third party making decisions that will affect your family’s future? Things might turn out “for the best” – you’ll have no way of knowing – but they very well might not. Your Estate will still have to pay the not insignificant professional fees of the independent third party Administrator – whatever the outcome!

Wouldn’t it be preferable to take the time now to make a Will setting out your wishes and appointing as your Executor(s) one or more persons who know you, and who can act on your behalf in making decisions based on factors which they know you would take into consideration in the best interests of your family members?

Surely that would have to be better than leaving it to an impersonal third party with no real understanding of your personal situation or your wishes – no matter how scrupulous and conscientious that third party may be.

As well as the obvious benefits mentioned above, making a Will (and updating it every few years, or as your situation evolves) can have a remarkable tendency to help focus your mind on important issues and encourage you to “tidy up” your affairs so that when your time eventually comes the task facing your Executor(s) is that much simpler.

Richard Kempe

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