Making a Will is not always an easy task. For some, it’s a sensitive issue that we’d rather not contemplate. For others, the costs seem too high, or they simply don’t dedicate the time to considering and then properly capturing their wishes.
However, putting off the Will-making process often leads to a sad and completely avoidable outcome.
Dying without a Will results in your assets being divided up according to predefined rules that may not benefit your family the way you want.
At Solomon Hollett Lawyers we see all too often cases where families are put in a difficult position following a loved one’s death with no Will in place. This means that there is no person appointed in charge of the estate (executor) and no clear plan for management and distribution of assets.
One study says that 52% of Australians die without a Will – this is a very difficult situation for the many families left behind.
So what happens if you die without a Will in Australia?
First, what does the law say about dying without a Will?
If you die without a Will in Australia, your death will be considered as ‘Intestate’.
Intestate estates are governed according to the law of the State or Territory in which the person left immovable assets, such as real property, and according to the law of the State or Territory in which the person was domiciled, in the case of moveable assets, such as bank accounts.
In each State or Territory there is a formula in the law that sets out who among the family left behind will benefit and the amount each person receives.
In WA these rules are found in the Administration Act 1903 (WA).
In WA, if you die without a Will your estate does not automatically go to your spouse or de facto partner. There is a different division of the estate depending on the kind of family tree left behind. This can include spouse/de facto partners, children, parents and siblings.
The split between parties is inflexible and cannot be altered without agreement of all parties or a Court order, which is further complicated when there are underage beneficiaries, who cannot legally enter into agreements for the altered distribution of an estate.
Your estate may end up in the wrong hands
One common scenario we find causes concern is when a person dies with a spouse/de facto partner but no children. In that case the whole estate does not go to the spouse/ de facto: the parents and siblings of the deceased person also get a share of the estate.
There must be a ‘carve up’ of the deceased person’s assets to accommodate these rules which can often result in the family home being sold to pay out the parents/siblings- not an ideal outcome for the spouse or partner!
Another very common scenario is when a person dies with a spouse and children. The children are also entitled to a portion of the estate. When the family home is the major asset of the estate, this can again mean the family home has to be sold to hold the children’s share in a very restrictive trust called a section 17A Trust, or their names have to be added to the title of the house (which is a very complex process, especially when the house is mortgaged).
You leave behind a nightmare for those closest to you
When a person dies intestate there is no executor who is automatically in charge of the estate.
One of the entitled persons under the Administration Act must apply to the Supreme Court of WA for a grant of Letters of Administration of the estate. The other entitled persons must give their consent or at least be given notice of the application.
Once the application is granted that person becomes the Administrator of the estate which is a position like an executor, that enables them to manage the estate and deal with the assets to divide them as per the rules of the Act.
When a person does not leave behind a clear Will there can be confusion among the family left behind as to who should apply and the door is open to conflict and delay if certain family members do not agree and do not want to consent to the application for Letters of Administration. Essentially, any person who is entitled to receive a portion of the Estate may dispute an application for Letters of Administration, and make their own.
There are added complexities for these applications if there are underage children left behind (as the Court will only grant an application if it is satisfied the underage childrens’ shares will be preserved). There is also no provision made for who the guardian should be for any underage children left by the deceased, which is a common wish recorded in a person’s Will.
This leaves family members (for example a surviving spouse or children) reeling from the stress of a death in the family and the added pressure of finding solutions for the administration and distribution of the estate – which may be outside their control.
Without the ability to solely control finances and the assets belonging to the estate, family members will need to obtain legal representation and advice to receive their inheritance.
You risk the breakdown of family relationships
Family relationships can be fragile at best- this can be exacerbated by the death of a loved one. At Solomon Hollett Lawyers we see all too often the stress and conflict that can arise when a person dies with no clear plan left behind.
In some cases, if a person is unhappy with the share of the estate they are left with they can make a claim on the estate for further provision. We see this frequently in cases where there is a spouse/de facto left behind who must share the estate with the deceased’s parents and siblings.
This can lead to unnecessary stress, conflict and legal fees- most if not all of which could have been avoided if there was a proper and valid Will left behind.
What if there are no surviving family members?
If there are no immediate family members surviving, the deceased’s estate may be divided among distant family members like parents, grandparents, uncles, aunts or cousins.
Depending on where you live, the law may allow certain individuals to claim parts of an estate based on moral grounds. If there are ultimately no family members surviving, the estate may be transferred to the State or Territory where the person died – a process called ‘escheat’.
Make sure you’re remembered right. Speak to the estate planning experts
A properly drawn legal Will allows you to be remembered in the way you want: peacefully and with as little fuss as possible. A legal Will ensures: the right person is in charge of your estate, your assets go to the correct beneficiaries and wishes about other things like guardianship of children are made clear.
The estate planning team at Solomon Hollett Lawyers is passionate about ensuring everyone has a properly drawn legal Will among their estate plan. We are here to help you do it right. Contact our Perth Will lawyers today for an obligation free initial discussion.