Intestacy

Dying without a valid Will leaves your State Government to determine the allocation of your estate.

What is it?

Dying without a valid Will (if you die without a valid Will you are said to die intestate). 

What is the consequence? 

Instead of you deciding who inherits from you, your State Government decides.

How do they do this?

They have already set the ground rules with the Administration Act.

They can and do change these rules from time to time.

Now, not only do a spouse and children benefit but also people with whom you are in a de facto relationship (of either gender). 

Aren’t they the people who should inherit?

Possibly but almost certainly not in the proportions or in the order that you may choose. 

What’s wrong with that?

How does your spouse look after herself and the children if she only gets about one third of everything?

If you (and your spouse) make a Will, you leave everything to each other on the basis that the survivor will continue to look after your children.

Only on the death of the survivor of you (or if you both die together) do your children inherit. 

Are there any other problems?

Yes. Your children receive their share at 18, when they are still young enough to waste it.

If their share includes your house, they have the legal right to insist Mum sells it and gives them their share. 

Who looks after everything?

If you make a Will, you choose your own executors to look after the Will.

If you don’t make a Will, the Administration Act does not make a clear decision about who looks after what you leave behind.

If you have adult children, they may want to take part in dealing with their inheritance. This may bring them into conflict with your spouse.

Ultimately it is the Court who will make a decision who administers the estate.

There is additional time and costs involved in applying for Letters of Administration as compared to Probate.

Does the Administration Act help if I have...

...a good level of assets?

You are not making an effective plan to minimise tax or to protect assets.

Both of these can be done by a trust that you create in your Will. 

...no children?

If you are married or in a de facto relationship. Your spouse/partner inherits everything if he/she outlives you. 

On his/her subsequent death, your family gets nothing. 

...family who may want to make a claim against my assets?

No. The Inheritance Act allows a spouse, de facto and children to make a claim that you have not made reasonable provision whether or not you have made a Will.  

What’s your advice?

A person’s Will is called his “Last Will and Testament”. 

It not only allows that person to decide who gets what. 

It also allows that person to make a final statement to the people for whom he or she most cares. 

If you own anything, including a life policy or a possible inheritance, you owe it to yourself to make a Will.