A person’s Last Will & Testament is one of the most important legal documents they’ll ever make. They’re simpler than you might imagine, but as with all things there are some unforeseen circumstances that can lead to complications.
If someone is named a beneficiary in a will but passes away themselves before the inheritance is disbursed, there are several things that can happen–depending on the precise circumstances.
If they’re the sole beneficiary:
In most states, if the sole beneficiary of a will dies before the estate has been resolved, their inheritance will instead pass on to their beneficiaries. If they have a will of their own, this will be the person or people named in that will.
If they do not, their heir will be determined by the standard approach: a person’s legal spouse is the default heir; if they are unmarried, then it is their children; if they have none, it is their siblings; if there are none, then their parents; if their parents are not living, there’s a complex process of hunting down another family member that kicks in.
This is a thorny issue, though, and will generally be taken on a case-by-case basis. Other relatives of the deceased will usually be able to take the heirs of the original beneficiary to court and challenge the inheritance if they feel the need to do so.
If they’re joint beneficiaries with someone else:
Usually the portion of the estate that would have gone to them will instead be split equally between any other beneficiaries of the original will.
There are some states, however, in which this will not be the case and the portion of the deceased’s estate set to be inherited will instead enter their estate as in the previous case. Should this occur, the other beneficiaries of the will could usually make a legal challenge if they felt it inappropriate for those people to inherit.
Can this be changed?
Many wills have clauses in them designed to deal with problems of this nature. Ask your lawyer to help you draft one, if you’re worried about this happening; you can specify someone to be an alternate beneficiary of your estate in the event of a beneficiary’s death.
This is a particularly good idea if you think it likely that other relatives or beneficiaries of your will would feel it necessary to make a legal challenge if some portion of your estate were to pass into the hands of a beneficiary’s heirs. Court challenges of wills are a nasty, divisive business and something that families should attempt to avoid at all costs: by making your wishes clear, you can help save them from the strain and bitterness.
Once you and your spouse have decided that you want to get a divorce, it’s best to consult a specialist divorce lawyer to discuss how to proceed. This is especially important if your financial situation is complicated or if you have children. In order to get the most from your initial consultation with a divorce lawyer, it’s important to be properly prepared. Here are some top tips on how to make sure you arrive for your meeting well-prepared.
What to take with you
If your spouse has already discussed divorce with their own legal advisor, you might have received some communication from them. In this case, remember to bring any letters or other documents that you’ve received. This allows your lawyer to immediately take control of the situation for you.
If you are the party initiating divorce proceedings, all you need to take with you are some identification documents. Your divorce lawyer will specify what forms of ID are acceptable prior to the meeting, but items such as a current passport, photo driving licence, bank statements, or utility bills showing your full name and address are usually acceptable.
Who to take with you
The break-up of a marriage can be an extremely stressful and worrying time and you shouldn’t feel that you have to face things alone. It often helps to bring a supportive family member or close friend with you when you attend your initial consultation with a divorce lawyer. It’s a good idea to ask them to make notes of what is discussed for you to refer to later, as you might not remember everything you talked about, especially if you’re feeling nervous or stressed.
What to ask your divorce lawyer
A protracted divorce can be expensive as well as stressful and for this reason you probably want to know how long the whole process will take. If your situation is complicated or it’s likely that your spouse will contest or dispute matters pertaining to child custody or financial settlements, things could take time to sort out. Your divorce lawyer should be able to give you a rough estimate of timescales once you’ve had your initial discussion, so remember to ask about this.
Another important consideration is cost. Before you actually proceed to instruct a divorce lawyer, be sure to enquire as to their fees. Once they have an understanding of your situation, a good divorce lawyer should be able to provide you with an estimate of what their final fees will be. Ask if you can pay the bills as the case progresses, thus spreading the cost, rather than having to find one lump sum at the conclusion of the divorce.
Your initial consultation with a divorce lawyer can be made much less stressful if you’re properly prepared. Take with you any documents that you’ve received from your spouse’s solicitor, remember your ID, and take a friend with you for moral support.
If you keep up with the news, you’ve probably heard alarming stories about parents kidnapping their own children and taking them overseas. Two to three children every week are either brought into Australia or taken out of the country without parental consent. If you’re worried that your ex-partner may abduct your children, here are some steps you can take to make sure this doesn’t happen.
Preventing the issuing of a passport for your child
Before an Australian passport can be issued for a child, all parties with parental responsibility are required to give consent or there must be a Court order allowing the child to travel internationally. There are special circumstances where a parent can apply for a child passport without full consent. If you suspect that your ex-partner may be trying to get a passport issued for your child, seek legal advice. Your family lawyer will help you determine the best course of action, which may include lodging a Child Alert Request at the Australian Passport Office or applying for a Court order to prevent a passport from being issued.
Preventing your child from leaving Australia
If your child already has a passport, consider managing the passport in a way that stops your ex from taking possession of it without your consent. One way to arrange it is to get a Court order to have the child’s passport handed in and kept by the Court. You can also request a Court order to prevent travel. As soon as the proceedings have begun, your child’s name can be placed on the Airport Watch List and the Australian Federal Police (AFP) will be alerted if there is an attempt to take your child out of the country. Your family lawyer will advise you of the quickest way to put these procedures into action.
Making sure that your child returns to Australia
You may find it reasonable that your ex wants to take your children to visit family overseas, but you could be worried that they will not return, and you have a good reason to be concerned. 50 per cent of parental abductions involve failure to come back from an authorised visit. In this case, it is possible to have a Court order issued where the child is permitted to travel only under certain conditions and your ex will have to provide evidence that all conditions have been met prior to travel. You family lawyer can assist you with this process to ensure your child’s safety and your own piece of mind.