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without a Will


When you die without a Will (or a valid Will), the legal definition is that you die “intestate”. Wills and Estates lawyer Larisa Kapur discusses some of the issues that can affect your family if you die without a Will.

We have many clients who refuse to do their Wills because they don’t wish to tempt fate. They believe that doing their Will will prompt some catastrophic event that will lead to their death! People may scoff at this suggestion but you would be surprised at how many people genuinely feel that if they do their Will, something terrible will happen to them. Other people think that they are young and bulletproof and therefore don’t think that they need to do a Will. Whatever your reasons are for not doing a Will, it can cause complete havoc with the family members or relatives that you leave behind you when you die. Everyone should consider that it is a matter of when you die not if! Everyone should therefore conduct themselves on the basis that their lives will end at some point in time and we should all make sure that we have a valid Will to assist our families in administering our estate after we die.

Below are some of the issues that can arise if you die intestate:

1. Separation from your spouse (but not divorced)

One of the most common things that can affect someone who dies intestate  is that although they have separated from their spouse (and in some cases many years prior to their death), because they have not done a Will, under the laws of intestacy in all states of Australia, the majority of the estate goes to the surviving spouse (e.g. Schedule 2 Succession Act QLD). This is the case even if the person who died and their separated spouse have lived apart for a long time and no longer have any form of relationship. In addition to this, the spouse is entitled to become the administrator of the estate which can cause some awkward issues if the former spouse and the family of the deceased do not get along.

There can also be issues even if the person who dies has a new partner. In Queensland, the definition of a ‘de facto spouse’ requires a continuous relationship of 2 years (S.5AA Succession Act QLD). Once again, this can cause significant problems for the new spouse of the deceased if he or she does not qualify as a de facto and satisfy the minimum 2 year requirement (this would not matter even if the couple had planned to marry).

The best thing to do for everyone concerned is to make a new will after you separate!

2. Your estate could go to unwanted beneficiaries or the Government!

Although the laws of intestacy differ slightly from state to state, the order of entitlement on intestacy is usually as follows:-

(a) Your spouse or de facto spouse (see S112 Succession Act NSW);
(b) Your children (and grandchildren if a child has predeceased you);
(c) Your parents;
(d) Your siblings (including any half siblings);
(e) Your Grandparents;
(f) Your Aunts & Uncles

Once again, depending on the makeup of your family, this could lead to the situation where someone inherits the whole or part of your estate where you would not want that to happen under any circumstances. Fate can intervene in strange ways and accidents can happen where a significant number of family members are unexpectedly killed. This can lead to someone down the line under the laws of intestacy inheriting assets where you would not want this to happen. If you have no family left after you die, your entire estate could default to the Government!

Making a Will ensures this does not happen!

3. Dealing with your estate after your die

If you die without a Will it is very difficult for your surviving family members to access your assets and administer your estate. Banks, local Councils, the Titles Office, phone companies, electricity providers, Centrelink, Medicare, medical providers – in fact any public entity that you need to deal with will not recognise or deal with you unless you are the administrator of the estate. If there is no Will, you must apply for Letters of Administration from the Court which effectively entitles you to administer the estate as if you were an executor appointed in a Will (where Probate of the Will is obtained). Obtaining Letters of Administration can be a difficult process, depending on the mechanics of the family and who survives the intestate deceased person. Families are very complicated in some cases and if you do not satisfy the order the priority in relation to a person entitled to obtain a Grant of Letters of Administration, it can be a very complicated and expensive exercise.

Even after a Grant of Letters of Administration has been obtained, you must then assume the duties of an executor in an estate and this can also throw up some challenges with respect to administering a complicated estate and dealing with distribution of the estate assets in accordance with the laws of intestacy. You must also assume the responsibility for paying any tax and other liabilities on behalf of the estate as well as deal with any potential claims that might be brought by family members.

Making a Will avoids all of this!

4. Conclusion

These are just some of the things that can arise if you die without a Will. The legal costs in dealing with some of these issues alone can be tens and sometimes hundreds of thousands of dollars. Most people can get their Will done by an experienced Wills and Estates lawyer for around $300.00 plus GST. Although this would only be a “simple Will”, at least you would have appointed executors to act in your estate and given an indication of your intentions as to who you would like to inherit your estate after you die. This simple step could save you and your family a lot of anguish and money in the long run.

If you require advice in relation to having your Will done for you, please contact our 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 with one of our dedicated Estate Planning lawyers.

We have a dedicated Wills and Estates team that practices exclusively in this complicated area. Please click here to access our team brochure with details of our professional staff.

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Larisa Kapur

Larisa Kapur

  • Lawyer
  • Wills and Estates
  • Direct line: 07 5553 5804
  • Mobile: 0449 731 379