What if I don't have a will?

What happens to my assets?

If you die without making a valid will, you leave what is known as an "intestacy". This means you have not validly disposed of some or all of your assets.

If you die without a will, your assets will be distributed according to a legal formula. This might mean that your assets do not end up with the person you would have chosen. It also means that you have no control over who distributes your assets.

What about de factos and their children?

A de facto spouse is a partner who you treat as your husband/wife, but who you are not legally married to. Sometimes the law will not recognise the legitimacy of a de facto relationship unless the couple have been living in a marriage-like relationship for a minimum period of time.

If you die without a valid will, your de facto spouse may not inherit any of your assets. There are also statutory provisions in some States that limit the definition of a “de facto spouse”. This is another good reason why it is important to have a valid will.

As far as your children are concerned, they do not have to be born from a legal marriage to share in the distribution of your assets.

What's the formula?

Generally a number of issues are taken into account when calculating the appropriate distribution, including the net value of the estate that is available for distribution, whether there are surviving spouses (and in some circumstances de facto spouses) or next of kin.

The rules for distributing assets where there is no will can be quite complex. These rules use a formula to distribute assets based on the family that you have left behind. For example, in NSW the rules can be summarised as:

·        first to your surviving husband/wife or de facto spouse and children. If there are no children, the husband/wife or de facto inherits everything;

·        if there are surviving children and a spouse/de facto, there is a division between them according to a set sum with any excess divided equally between the children and the spouse/de facto;

·        if there are children and no surviving spouse/de facto, the children get equal shares of the estate. If any of the children has already died but left children of their own (grandchildren of the deceased) then that child inherits their parents share;

·        any living next of kin (but only if there are no living children or spouses/children/grandchildren). If necessary, a search will be made to identify any living next of kin, including parents, siblings, half-siblings, grandparents, uncles and aunts and half-blood aunts and uncles;

·        finally, to the Government;

Note that there are also special rules to do with the family home, which the spouse/de facto may inherit to the exclusion of any children.

What about lost wills?

This is more common than you may think. Of course you should look very hard for a lost will, including asking the bank and the deceased's solicitor and accountant (and perhaps a trusted friend). It's also worth checking trustee companies placing an advertisement in newspapers or the journal of the law society - this would alert a solicitor who may have made the will.

LAW FOR YOU

Read this: This fact sheet is intended to be general information about the law in Australia. It is not a substitute for legal or other professional advice. Lawscape Communications Pty Ltd, Fairfax Interactive Pty Ltd or MoneyManager does not accept responsibility for loss to any person, who either acts or does not act because of this fact sheet.

© Lawscape Communications P/L

Last Updated – March 2007