10 Myths of Deceased Estates

Oct 13, 2023 | Publication

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.

The information in this publication is of a general nature and is not intended to address the circumstances of any particular individual or entity. Although we endeavour to provide accurate and timely information, we do not guarantee that the information in this publication is accurate at the date it is received or that it will continue to be accurate in the future. We are not responsible for the information of any source to which a link is provided or reference is made and exclude all liability in connection with use of these sources. If you do not wish to receive newsletters from us, please let us know.

Latest Insights

How Vicissitudes Impact Future Economic Loss in Legal Cases

When it comes to calculating future economic loss in legal cases, one concept that often arises is "vicissitudes." But what exactly are vicissitudes, and how do they affect the compensation awarded to plaintiffs? In this article, we'll delve into the definition of...

Can you still make a claim?

Many claims have limitation periods. A limitation period is a set time frame within which an aggrieved person must commence proceedings in a Court. These limitation periods generally commence from the date of the injury and/or incident. Some claims however, such as...

Teacher convicted for failing to report sexual abuse of a child

Teacher, Mr Webb of Trinity College Perth, was unsuccessful in his appeal against his conviction of failing to report sexual abuse of a child in a decision delivered on 13 October 2021. In April 2017, a group of boys from the school went on a school rugby trip to...

Annual Dinner – Parramatta & District Regional Law Society

Western Sydney's legal profession gathered for the Annual Dinner of the Parramatta & District Regional Law Society at CommBank Stadium! We are particularly grateful to Dr Hugh McDermott MP, Parliamentary Secretary to the Attorney General, Senior Vice...

What compensation can I get if I have been injured at work?

If you have a work-related injury or illness, you may be able to claim compensation for lost income, medical expenses, travel expenses, domestic assistance, pain and suffering and permanent impairment. All employers are required to have workers compensation insurance...

Court makes provision for son left out of father’s Will

The recent Supreme Court of New South Wales decision of Rathswohl v Court  NSWSC 356, involved 3 siblings disputing their entitlements to their late father’s estate. The defendant, Yvette, claimed she cared for her father for the last 18 months before he...

If I die without a Will what can happen?

If you die without a Will there can be many unintended consequences. Some of these consequences may be: A person who you do not intend could control your estate.  This could even be someone you do not know.  An executor is a person who controls an estate...