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Wills–What does having a Will mean and what happens when people die without one?

A will is a legal document that lets you decide how you want your property, care for you dependants (partner, children etc.) and your body to be dealt with after you die. A will only comes into effect once you die and is arguably the most important document you will ever sign.

A well drafted will can reduce emotional and financial strain for your loved ones after you pass away and it reduces the likelihood of family members disputing over your estate and challenging your will. Accordingly, we suggest seeking legal advice when creating a will to ensure your intentions are accurately recorded with no room for ambiguity. If your circumstances or wishes change, you can redraft your entire will or create a codicil which is a separate binding document, read together with your will.

Generally, a will includes (among other things):

  • Your requested funeral arrangements;
  • The appointment of trusted members of your family, close friends or professionals to administer your estate (known as executors of your estate);
  • The appointment of guardians for young children;
  • Provision for your dependants such as your children, grandchildren or partner (who are also known as your beneficiaries). If your will does not adequately provide for your
    dependants, they could make a claim against your estate;
  • Who you would like to inherit your personal belongings and your general assets such as furniture and appliances;
  • Debts owing to be repaid or loans provided by you to be forgiven; and
  • Specific gifts to individuals or donations to charities.

Regardless of how much property you have, you should have a will. For example, you may have an item of jewellery that you would like to give to a specific family member due to its sentimental value rather than monetary value.

It is particularly important for those who marry, enter a civil union, or de facto relationship, or have children to create a will. If you get married or enter a civil union, provisions of any will made before that are automatically revoked unless the will specifically states that it is made in contemplation of marriage/civil union. This is different for de facto relationships. If you enter into a de facto relationship, any will made before that remains valid.

If your relationship ends, you should review your will to ensure that any specific provisions for the benefit of your ex-partner, are removed before any relationship settlements are made. If you get divorced, any provisions made for your ex-partner are automatically revoked. The provisions are not revoked if you have merely separated.

Dying without a will is also known as dying ‘intestate’. This means that the Administration Act 1969 determines how your property is distributed (provided that the value of your estate is above $15,000) which may not align with your wishes and may result in disputes over your estate. Generally, the property is distributed to a surviving spouse and family members in specified proportions. This process can be more time consuming, costly and complicated than having a valid will.

A will allows you to appoint trusted personal representatives to administer your estate as executors. Where there is no will, the court appoints your personal representatives such as your family member or lawyer. They are described as administrators of your estate. The person who benefits most from the estate is entitled to apply to be administrator. However, if that person does not wish to be the administrator, others can be appointed by the High Court. Your administrators can still administer your estate if you die intestate, but they will be restricted by the Administration Act 1969. If there are no family members to distribute the estate to, it then goes to the Government.

Everybody should draft a will at some stage during their lifetime to protect their loved ones and ensure that property is dealt with in accordance with their wishes. Accordingly, we strongly recommend seeking legal advice and creating a will, sooner rather than later, and ensure that if your circumstances have changed, you review your will.