Wills and Intestacy

Amanda Sommerville

Written by Amanda Somerville

If you’re aged over 18 years of age, own assets and care who gets your assets or money when you die, then you should have a Will.  A Will is an important legal document which sets out how you wish to distribute your assets upon your death. Each person must have their own Will – you can’t make a joint Will with your spouse or de facto partner.

Your Will can also state whether you want to be buried or cremated, what sort of funeral you want and who you would like to look after your minor children. Your Will also enables you to choose an executor, who is the person who follows the directions in your Will to ensure your testamentary instructions are carried out. Your executor is also generally the person responsible for making your funeral arrangements, paying your outstanding bills from estate funds and calling in your assets for distribution to the beneficiaries, so this is an important role.

Your Will cannot deal with jointly held assets. This is often the family home or jointly held bank accounts. Instead the right of survivorship applies to jointly owned assets, and the deceased’s share of the asset automatically passes to the surviving joint tenant and not to the beneficiaries named in the deceased’s Will. It is therefore very important when preparing your Will to think about what assets you own and how you own them and it might be that you need legal advice regarding this.

If you do not have a valid Will at the time of your death, this is known as dying “intestate”.  If you die intestate, then your estate will be distributed in accordance with the appropriate State’s intestacy laws. Each State has a formula which determines the beneficiaries of an intestate estate and what each beneficiary will receive. It is quite rare than an intestate estate passes to the government and this only happens if the deceased has no surviving family members. Although it is rare that an estate passes to the government, dying intestate still has major disadvantages over dying with a Will. Without a valid Will, you don’t choose who will manage your estate,  you don’t control over which family members benefit from your estate and administering an intestate estate is often more complicated and more difficult than administering a Will.

There is a common misconception between married and de facto couples that if a person in a relationship dies without a Will, then their spouse or de facto partner will automatically receive all of the deceased person’s estate. This is generally not what happens, as again the rules of intestacy will apply. This means that depending on the size of the estate and the deceased’s family structure, often family members (such as the deceased’s children, parents or brothers and sisters) will share in the estate with the domestic partner. An estate distribution in this manner can leave the surviving domestic partner without the financial resources they had expected and may not be what the deceased wanted to occur to his or her assets. To avoid this, you must enter into a valid Will which details how you want your estate to be distributed.

Once you have a Will, then you should make sure that it remains appropriate and valid. There are life events which will automatically invalidate your Will. If your Will is invalidated and you do not sign a new Will, then your estate will be considered intestate as discussed above.   

Things that will automatically invalidate a Will include getting married after your Will is signed, if your Will doesn’t state that it was signed in contemplation of your marriage. This is extremely important in relation to de facto couples who marry after they have signed their Wills. It is fairly common in that situation that the now married de facto couples don’t redo their Wills, as they are still happy with how their estates are to be distributed. What they don’t realise is that their Wills won’t be of any effect as the marriage has automatically invalided the documents.  Instead, the estates will be distributed in accordance to the rules of intestacy. To avoid this, if your Will was not made in contemplation of marriage, it is important to sign a fresh Will after your marriage.

Also, since February 2008, if you divorce, the divorce automatically invalidates your Will unless the Will states that it was written in contemplation of the divorce. This is generally a good thing.  Most people wish to change the main beneficiary of their Will if their relationship breaks down, no longer leaving the bulk of their estate to their former spouse or partner. It is also important to remember that if your relationship breaks down and you separate, but don’t actually divorce, then your Will remains valid – which could result in the separated spouse receiving the bulk of your estate, which is likely not what would have been intended. To avoid this, if you separate from your spouse or partner, you should sign a new Will.

To ensure that your Will remains appropriate for your life circumstances, it is strongly recommended that even if you do have a valid Will, you check it every few years or whenever any major life changes occur. This is to ensure that your instructions in your Will are still appropriate and suitable for your life situation.

Depending on your family structure and how your assets are held, it may be beneficial to obtain legal assistance to have a Will prepared to ensure it does what you want it to do and to limit unexpected problems for your executors and beneficiaries after you die. You should also ensure that your executor knows that you have a Will and where the original is kept should it ever be needed.     

Making a Will is often put in the too-hard basket and left until it is too late. Dying intestate can add to the legal, financial and emotional burden involved in administering your estate. If you die without a Will, it will generally be your family members who have to sort out your affairs at a time when they are likely to be grieving and not up to coping with the additional legal administrative responsibilities that come from dying without a Will. The main purpose of a Will is to make life easier for those who are still living and it really is a document worth having.