If you die without a valid will, you are said to die intestate. The consequences of dying intestate in Australia are simple: instead of you deciding who will inherit your property, the courts will decide. In theory, this distribution of your assets should be satisfactory because the law takes into account common sense factors like who has depended upon you for financial support during your life, and who has the closest realtionship to you. But even if the law does distribute an intestate’s estate to the appropriate beneficiaries, those beneficiaries will suffer considerable additional effort, expense and stress.
The situation is even more serious if you wish to distribute your estate in a specific way that is not reflected in the law. If, for instance, you are estranged from a close relation, and do not wish to make provision for them, this decision will be taken out of your hands if you die intestate. To make the situation even more challenging, the law of intestacy differs in each Australian state and is continually changing. You cannot rely on what is “common sense”, or what has happened in previous cases, to know how your estate will be distributed after your death.
Is Dying Intestate Common?
Dying intestate is quite common in Australia. In a safe and generally prosperous country like Australia, most of us expect to live to old age, so it is natural to think that there is always time in the future to make a will. People are often reluctant to contemplate their own mortality, and it is easy to put off taking the time to make a will. As a result, grieving family members often have to go through the stressful process of administering an intestate estate, usually at the same time as dealing with the shock of an unexpected and premature death. Administering an intestate estate requires that the family apply to the courts to access the assets of their partner or parent, and the delay in concluding the process can be protracted. There are also, sadly, many cases when families become embroiled in bitter legal battles because there is disagreement about how the estate should be divided. Without a written account of the intentions of the deceased, it can become a process of speculation, with both sides claiming they were promised certain assets.
What Does It Mean to be Partially Intestate?
It is unfortunately common for someone to think that they have a valid will, only for their family to discover that they are partially intestate. Someone is said to be partially intestate if they have a valid will, but it does not include provision for all assets. This often happens when someone makes a first will and never revisits it. A typical scenario would be where first-time parents make a will to express their wishes about a guardian for their new baby, but never revisit the will to take account of purchasing a home, growing a superannuation fund, or acquiring investments.
Another common situation is where there is a valid will, but it is inadvertently revoked when the testator gets married. This can be especially problematic when there were children from an earlier relationship, and the parent does not realise that their subsequent marriage has automatically cancelled their previous will.
It is vital that a will is updated at significant milestones (births, deaths, marriages, major purchases), or alternatively, that original wills are competently drafted by a solicitor to contemplate future events and make provision for them.
What Happens When Your Will is Informal?
It is also not unusual for a will to be made that does not comply with legal rules, sometimes called “informal wills”. Solicitors see informal wills written on scraps of paper, not witnessed, or not even signed. While the law has rules to try and incorporate the wishes of the deceased expressed in these documents, this process differs in each state and is far from straight forward. The effort involved in administering an informal will is just as great, if not greater, than administering an intestate estate.
How Do I Avoid Dying Intestate?
To avoid dying intestate you must have a valid will. Your will must nominate someone that you trust – an executor – to take on the job of distributing your assets according to your wishes. It is usually wise to name more than one executor and to nominate someone with good communication and organisational skills. You can appoint your solicitor to act as executor, or choose a family member or friend.
The safest course to ensure that all of your wishes are correctly recorded is to have your will drawn up by a solicitor. If you decide to draft your own will, you need to comply with specific legal rules, such as to ensure the will is in writing, and signed by you when you are in “sound memory, mind and understanding”. In addition, two people must simultaneously witness the will in your presence, and these witnesses must not be your spouse or a beneficiary under the will.