Have you ever wondered what happens if you die without leaving a Will?
Dying without a will is called dying “intestate”.
What happens to my assets?
One of the consequences of a person dying intestate are that their assets will be distributed according to legislation. The Administration and Probate Act was amended in 2017, and will apply to the estates of all people who die after 1 November 2017, without leaving a Will.
For instance, where a person dies and is survived by:
- A Partner, with no children: the Partner will take the whole of the estate.
- A Partner and a child of that relationship: the Partner will take the whole of the estate.
- A Partner and child who is not a child of the surviving partner: the Partner will take the deceased’s personal chattels, the statutory legacy (this changes each year – in 2018 the legacy is $451,909.00), interest on the statutory legacy and one half of the balance of the estate. The children of the deceased will take the remaining half of the balance of the estate in equal shares.
Disadvantages of dying without a Will
Some other disadvantages of dying intestate are:
- No one can administer the estate and the assets until a grant of Letters of Administration is obtained from the Supreme Court.
- There is uncertainty as to who will be Granted Letters of Administration.
- You cannot appoint the person who you want to administer your estate. For example, if you were separated and not divorced, your spouse would be appointed as the Administrator of your Will.
- If you are separated from your spouse without being divorced, your spouse is entitled to a large portion of your estate, or the entirety of your estate if you do not have any children.
- If you are separated from your spouse and have a new de facto partner, your spouse and partner will need to come to an agreement between them or obtain an order from the Court as to how the estate should be divided.
- You cannot exclude people from benefitting under your Will. For example, if you were estranged from one of your children, they would still benefit equally from your estate.
Making a Will
There is no particular form required to make a legal Will, but it is recommended that it be prepared by a law firm for the following reasons:
- It avoids ambiguity so your wishes are recorded in a clear and concise way;
- It will cover circumstances where death occurs immediately and also further in the future, including guardianship of your children.
- Your Will is designed to cover circumstances where death occurs immediately and also further in the future, including guardianship of your children.
- It is easier to apply for a Grant of Probate on a Will prepared by a lawyer, often homemade wills are not executed property and are invalid and causes the Probate process to become drawn out and difficult.
Updating your Will
Wills become void when the Will maker marries or becomes divorced. It is essential that you update your Will upon marrying, separating or divorcing a partner.
Your Will should be reviewed every five years, and when any major changes in your family unit occur, such as the arrival or death of a family member.
Please contact Marlee Viero of our office for an appointment to discuss your needs.