What to Do When Someone Dies Without a WillWhat to Do When Someone Dies Without a Will

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What to Do When Someone Dies Without a Will

Hello, my name is Kerry. Last year my mother died suddenly. When we went through her papers, we discovered she didn't have a will. My mother had been married to another man before she met my father and I had a couple of step brothers. Unfortunately, they turned up on our doorstep and started to demand that we hand over my mother's life savings to them and their family. I contacted a lawyer who specialises in probate law. She talked me through my case and explained how we would defend it in court. Thankfully, the matter was resolved to my satisfaction and I could start to grieve for my mother. I decided to start this blog to help others who have a contested will on their hands.

Steps the Courts Follow When Dividing Property After Marriage Breakdown

4 December 2017
 Categories: Law, Blog

When it comes to division of property after divorce or separation, each situation is unique. But generally speaking, most family law courts in Australia advocate "fair distribution" of marital property. When a court applies fair distribution rules, it divides property between the divorcing or separating couples in a fair and just way, in light of the situation at hand. Before reaching a decision on the division of marital assets, here are some steps that the courts are required to follow:

Determining a divorcing or separating couple's property pool. The court determines a couple's property pool by summing up the value of all of the assets of the relationship and then deducting the value of both parties' liabilities. The asset pool comprises all assets held individually or jointly, irrespective of whether they are acquired before, during or after breakdown of the relationship.

Determining both parties' contribution to the property pool. When splitting marital property, the court also considers each spouse's contribution to the property pool. It takes into considerations factors such as who took care of the children, who was the bread winner, who renovated the home, who prepared the meals and cleaned the house, etc. and most importantly, how long the marriage lasted. The longer the duration of the marriage, the greater the parties' contribution to the property pool, and thus the greater the share of property they should be awarded by the court even if there is a "non-financial" partner involved.

Determining factors affecting each party's incoming earning potential. The court will also take into account factors that will affect each party ability to earn income. Factors like a person's age, education, health, and working experience can impact their ability to earn a living in the future. If there are children born of the marriage, the court will consider who will be caring for the children after dissolution of the marriage. A stay-at-home mom's income earning potential may be affected because they will have to stay at home and take care of the kids, for example. In such situations, the court may decide to award them a bigger share of the marital property.

To ensure you get your fair share of property after breakdown of your marriage, it is important that you hire an experienced family law lawyer to represent you in court. An experienced lawyer will assess your situation and build a strong case so you can get a favourable outcome.