Wills: Passing away without a will

In the previous article “What is a Will” we outlined how easy it is to have a legal will drafted. Now we will look at the implications of passing away without a will.

There is a popular urban myth that the government gets everything if you die intestate (without a will). This is only the case on rare occasions. If you die without a will the law provides for the distribution of your estate, but that distribution according to statute may be very different from the distribution you may have wanted.

The aim of intestacy legislation is to attempt to achieve a satisfactory result by distributing your estate according to a formula and it makes assumptions about the relationships between family members. This can be distressing for some of the family when individual circumstances are not taken into account. The distribution of the estate or intestary is complex.

A short incomplete summary of the formula is that if the deceased leaves a spouse without issue (children), the spouse gets entire estate. If there are children of the deceased and a spouse, the spouse still gets everything. If there are children of the deceased not of the spouse, the spouse gets the household chattels plus $350,000 (CPI adjusted) plus half of remainder, with the children sharing equally the other half of remainder. There can also be disputes when for example you leave both a defacto partner and a husband or wife from whom you are not divorced.

The spouse can take the family home as part of the $350,000 instead of that amount. If the deceased dies without spouse or issue, the parents inherit the estate. If he/she dies without spouse, issue or parents, the siblings inherit the estate. If he/she dies without spouse, issue, parents or siblings, the grandparents inherit the estate. Same pattern then applies further looking at uncles and aunts of whole blood and thereafter first cousins. If there is none of the above, the estate goes to the Government.

These complex rules are made more difficult because issue of deceased relatives can substitute for the relative.

Administering your Estate is generally significantly more expensive when you do not have a will. As you can see, it is preferable to have a professionally drafted will.

If you have any questions you would like answered either confidentially or via this medium, please email us at office@mjolegal.com.au

This is intended for general information and does not constitute legal advice and should not be relied upon as such. Formal legal advice should be sought.

On February 6th, 2010, posted in: Know the Law by
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