It’s a fact of life that some of us will end up dying without a Will. Some of us may simply never get around to making one. Or some others may make a Will, but unbeknownst to them it may become revoked by law (such as if that person gets married). When a person dies without a Will, legislation determines who administers the estate, and who the beneficiaries will be. The technical term for dying without a Will is to die ‘intestate’.
The person who performs the administration of an intestate estate is referred to as an ‘Administrator’. It is fundamentally the same as acting as Executor, which is the term given to a person appointed under a Will to administer an estate. In descending order, the first few persons entitled to act as an Administrator are:-
• the deceased’s spouse;
• their children;
• their grandchildren or great-grandchildren;
• their parents; or
• their siblings.
There is an old wives’ tail that if you die without a Will, the Government will receive your estate. This generally isn’t the case. An intestate estate is distributed as follows:-
• If you die leaving a spouse and no children – your spouse will receive your entire estate;
• If you die leaving a spouse and one child – your spouse will receive the first $150,000 of your estate plus your household chattels. The balance is then divided equally between your spouse and child;
• If you die leaving a spouse and two or more children – your spouse will receive the first $150,0000 of your estate plus household chattels. The balance is then divided 1/3 to your spouse, and 2/3 between your children;
• If you die without a spouse but leaving children – your children will receive your estate equally; or
• If you die without a spouse or children – your parent(s) will receive your estate.
There are further provisions for your estate to be distributed between your extended family if you don’t have a spouse, child or parent to survive you. It is only if you die without any of this extended family surviving you that your estate is deemed ‘bona vacantia’ and falls to the Government.
Even if dying without a Will appears to accord with your wishes, there are some significant issues to consider:-
• Most intestate estates will require Letters of Administration to be applied for. This is a Court order that evidences who is appointed to act as Administrator. This will delay the administration of the estate by quite some time and is an additional expense.
• There may be disharmony between the persons who are entitled to act as Administrator.
• As with estate planning generally, not all assets automatically form part of a person’s estate. Some examples of this include superannuation, life insurance, and jointly owned assets.
• The legislation has a fixed definition of a spouse. There may be circumstances where you do not want your ‘spouse’ to benefit from your estate (e.g. if you were in the early stages of a de facto relationship, or if you have separated from a married partner but were not divorced).
• There may be other matters that should be resolved by way of your Will (e.g. a right to reside in a property or the forgiveness of a debt).
It is our view that there is no substitute for obtaining proper legal advice and preparing a valid Will. Dying without a will should be avoided as far as possible.
Our experienced solicitors can assist you in preparing your estate planning, including preparing and updating Wills and Enduring Powers of Attorney. Please do not hesitate to contact us if we can be of assistance to you.
This post is general information only. It is not a substitute for legal advice from a lawyer. If you have a legal issue, you should always contact your lawyer to obtain advice that is relevant to your circumstances.
