Attwood Marshall Lawyers Wills and Estates Partner Angela Harry discusses the passing of singer Aretha Franklin to highlight the pitfalls of not having prepared a Will.
Introduction
Aretha Franklin was the ‘Queen of Soul’ – an iconic American singer-songwriter and piano prodigy, with fame, accolades and ample resources, including a team of trusted attorneys.
She was known for having a hard-nose in her business dealings – always carrying her purse onto stage to put on the piano – insisting to be paid in cash before she performed.
So when the ‘I Say a Little Prayer’ singer passed away on August 6, 2018, aged 76, after a long battle with cancer, the fact she did not have a Will to deal with her vast estate, worth about $80million, shocked the world.
While it’s impossible to know why singer didn’t have a Will, it was widely reported Franklin’s attorneys had ‘repeatedly urged her to create a Will’ but she ‘never got around to it’.
It’s not an uncommon mistake.
Not married, Franklin left behind four sons, aged from 48 to 63, including Clarence Franklin, Edward Franklin, Kecalf Franklin and Ted White Jr. Clarence.
Franklin’s eldest – Ted White Jr. Clarence – is incapacitated and represented by a guardian, while Franklin’s niece has accepted the role of executor.
Under Michigan law, where Franklin passed away, Franklin’s sons are to equally divide their mother’s assets in the absence of a Will.
First, lawyers must determine what is in Franklin’s estate, its value, and then any tax owning will be taken out by the US Government.
This process could take many years and, unfortunately, in most cases where there is an estate without a Will – especially in a blended family situation – the estate is likely to be contested.
At the time of print, no signs of conflict had emerged among family members about how the estate should be split, so the situation seemed straightforward, but still not ideal.
Franklin was in a long-term de-facto relationship but because she was not legally married at the time of her passing, her partner will not inherit under intestacy laws in Michigan.
In NSW and QLD, the law considers you to be ‘intestate’ if you have passed away without a Will, and this can lead to many unwelcome consequences for your loved ones.
Separated without divorce
According to the laws of intestacy in all states of Australia where a person has passed away separated but not divorced, the majority of their estate will go to their surviving spouse.
This is even if their surviving spouse has a new partner, or has lived away from the deceased for a long period of time and there was no relationship.
The spouse is entitled to become the administrator of the estate, which can cause tensions if that spouse and the family of the deceased do not get along.
In Queensland, the definition of a ‘de-facto spouse’ for the purposes of intestacy and family provision claims requires a continuous relationship of two years.
This can cause significant problems for the new de-facto spouse of the deceased, if he or she does not qualify as a de-facto by not satisfying the minimum two year requirement.
Default of estate to unwanted beneficiary
Without a succession plan, you run the risk of your entire estate defaulting to the Government, or an unwanted beneficiary.
The order of entitlement on intestacy passes your estate to beneficiaries in the following, respective order:
1. Your spouse or de-facto spouse (receive statutory legacy and then a share of your residuary estate depending on whether there are children)
2. Your children (and grandchildren if a child has predeceased you)
3. Your parents
4. Your siblings (including any half siblings)
5. Your grandparents
6. Your aunts and uncles (or their children if they predeceased you)
The laws of intestacy differ slightly from state to state and can lead to someone inheriting the whole or part of your estate, where you would not want that to happen under any circumstances.
If you do not leave a family member that falls within the category of next of kin as outlined above then your estate passes to the Crown (i.e. the Government).
Administering an estate
Administering your estate becomes incredibly difficult without a Will because it your surviving family members will not be able to access your bank accounts, deal with local Councils, the Titles Office, phone companies, electricity providers, Centrelink, Medicare and medical providers – in fact any public entity that you have dealt with.
In most instances, those agencies will not recognise or deal with you unless you are the administrator of the estate.
If there is no Will, your loved ones must apply for a Letter of Administration from the Court which effectively entitles them to administer the estate, as if they were an executor appointed in a Will.
Obtaining a Letter of Administration can be a difficult process, depending on the mechanics of the family involved and who survives the intestate deceased person.
Your Will
The diligent preparation of a Will will save your loved ones from anguish while securing their financial future, in your absence.
Many people – perhaps daunted by the process – have not prepared, with the help of a solicitor, important legal documents such as a Will or Enduring Power of Attorney.
A basic Will can be compiled by an experienced Wills and Estates lawyer at Attwood Marshall Lawyers starting from $330.00.
This ‘simple Will’ would appoint an executor, to act in your estate and indicate who you would like to inherit your estate after you pass away.
Please contact our Wills and Estates Department Manager, Donna Tolley on direct line 07 5506 8241, email: dtolley@attwoodmarshall.com.au or free call 1800 621 071 to book your free 30 minutes estate planning review appointment.
