Dying without a valid will can mean your hard-earned assets end up with the wrong people, your estate might be subject to an expensive court dispute, or your valuable or sentimental possessions might be unintentionally sold.
A will is the only way that you can ensure the assets you’ve worked hard to accumulate over your lifetime, or any other precious items that may have emotional meanings for your family, are distributed the way you’d want them to be after your death.
Many people have valuable or sentimental items, such as engagement or wedding rings, war medals, or even family archives, that they want to leave to close family members or friends. These intentions must be recorded in a will. If this isn’t done, there’s a risk that an executor may unintentionally sell or otherwise dispose of these items, and they will be lost forever. This can be devastating when there is a long-held family heirloom involved.
For many people, their main motivation in making a will is to make sure their family members will be taken care of after they have died. This may mean ensuring that a mortgage is paid, and property transferred so that a spouse, partner or other loved one has secure accommodation. Some people may wish to include trust structures in their wills so that the inheritances of vulnerable or disabled beneficiaries are protected and are properly looked after for the rest of their lives.
Legal advice from estate planning experts is the best way of making sure that your will is tailored to achieve your individual objectives. If there’s no will, then the laws of intestacy will apply, and this can have unexpected (and sometimes disastrous) consequences for your loved ones.
While your money doesn’t automatically end up with the government if you die without a will, it may well end up there if you’re not careful. There’s usually a long and often complicated process to go through before it gets to that stage.
When a person dies without a will, an administrator is appointed by the Courts to deal with their assets, with State and Territory legislation governing how the administrator will distribute those assets. The administrator will generally go through these common steps:
Typically, the laws of intestacy generally work in this way: first, the spouse and children of the deceased will receive everything. If there is no spouse or children, then their parents will receive the estate. If there are no surviving parents, then it will go to their siblings, then grandparents, then aunts and uncles and then cousins. After all avenues are exhausted and after a very long and expensive process, then what’s left of the estate will eventually end up with the Government.
If someone dies before a divorce is finalised, then any provisions made for their ex-partner in there will continue to apply. The same goes for separation and if neither side has a will in place, it could be argued they are still considered ‘partners’ for the purpose of the estate distribution. Signing a new will, which clearly documents that the relationship has ended and who your new beneficiaries should be, is the clearest way to prevent any unintended benefits to an ex-partner should you pass away.
Also remember, a new will does not change the nominated beneficiaries on ‘non-estate’ assets such as superannuation and life insurance, so you’ll have to adjust these separately. Another important consideration is who you’ll appoint as the guardian for your minor children if you have them, should anything happen to you.
The complexity of a will usually depends upon the assets and the personal relationship dynamics involved. It’s vital to get individual advice about what estate planning would work best for your circumstances and put a will in place to make sure that the loves of your life are protected, and your wishes are respected.
Susan is an Estate Planning Solicitor at Equity Trustees. Susan was admitted as a solicitor in 2012 and has worked exclusively in estate planning since admission. She has also had experience working in deceased estates and trust administration.
Susan enjoys working together with her clients on tailored solutions to achieve their estate planning objectives, whether it’s a simple review of existing documents or a complex estate plan with a diverse range of assets and relationships to consider.
Susan has three children, including a daughter with a rare chromosome deletion called Phelan-McDermid Syndrome. This personal experience has enabled Susan to form strong connections with clients who are also parents or carers of people with disabilities. Estate planning in these contexts can be very emotional and complex. Susan is passionate about helping her clients to establish appropriate estate planning structures that will protect their assets, and the best interests of their beneficiaries, well into the future