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What happens if you don’t have a will when you pass away?

Published 23rd May 2018


We all hope that when we pass away the situation will be as stress-free and simple for our loved ones as possible. It’s a time for reflection and mourning, not a time to be worrying about the details.

That’s why estate planning and wills are so important. These documents spell out everything, from the division of assets and property to funeral arrangements and your final messages. However, if you die without confirming these details you are considered to be ‘intestate’, which can be very problematic for your family.

What exactly is intestate?

Around 50 per cent of Australians don’t currently have a will, according to Mondaq. This is an extraordinary percentage, highlighting just how many people are at risk of dying intestate.

Do you have a will?Do you have a will?

It is important to note that not having a will is just one element of intestacy. In situations where a will isn’t comprehensive, isn’t valid, the person wasn’t fully mentally capable when they wrote it, or it was poorly drafted from a legal perspective you could be classed as dying intestate.

This technically means you can die both intestate and testate if parts of your will are legal.

What happens if you were to die intestate?

If you’re deemed to have died intestate, the process that follows is very different to that which takes place after the death of someone with a valid will. Soon after your death, the relevant state or territory authority appoints an administrator to your estate. This individual may not be connected to you or your family at all, and the process can take a lot longer.

If you’re deemed to die intestate, the process that takes place is much different to if you had a valid will and estate.

Using your family tree and financial records, this administrator will pay off any debts and taxes – and then take care of any funeral arrangements and asset distribution. This all follows a set formula that provides some family members a higher percentage of your estate than others (these percentages can differ between states and territories).

For example, spouses usually inherit the majority, then any children, followed by parents, siblings, grandparents and other relatives. Intestacy should not be relied on for providing for friends after your death, as an administrator will look to make provisions for family members as a priority.

You'll want your immediate family to benefit from your will.You’ll want your immediate family to benefit from your will.

Another critical element to take into consideration is that if you were a member of a charity or other organisation, these parties could apply to the court for provisions if it was possible that you would have left something in your will.

It should be clear from these details that intestacy looks to provide an even allocation to everyone who is eligible. As a result, this will probably not reflect how your will would have looked. This is where Oncore Legal Solutions can help – ensuring your will covers every angle.

Estate planning with Oncore Legal Solutions

It’s the goal of the Oncore Legal Solutions team to ensure your estate planning is comprehensive and encapsulates your entire life. From your property and belongings to more complex areas of your estate such as family businesses and superannuation benefits, we will work to make sure your affairs are in order.

A will might be one part of your estate, but considering the problems that can arise from intestacy, it’s an important part to get right. Our team can create a cost-effective and efficient estate plan that ensures your wishes are reflected.

To learn more about estate planning with Oncore Legal Solutions, get in touch with us today!