According to the Australian Securities and Investments Commission, nearly half of all Australians die without a valid will, or ‘intestate’.
The legal and procedural complications that can arise in the event of intestacy can be both costly and time-consuming.
What is a will?
A will is a legal document that provides directions with respect to how you would like your estate to be managed and distributed after your death. It allows you to choose someone to administer your estate (i.e. your executor), enables you to provide specific directions or instructions regarding a particular issue (such as funeral arrangements or nominating a guardian for your children) and enables you to choose whom you would like to receive your estate.
Wills are important tools that allow your estate to be managed in accordance with your wishes. By having a will, you are reducing the risk of your loved ones arguing over your estate and you are minimising the legal costs involved in administering your estate.
What happens if I don’t have a will?
If you die without a valid will, you are deemed to have died intestate. Instead of your estate passing in accordance with your own wishes, the law of intestacy in Queensland will stipulate who is to receive your estate. Generally, that person will be your next of kin irrespective of whether you wanted a particular relative to receive a portion of your estate or not.
The real-life implications of intestacy can be significant. For example, Part 3 of the Succession Act 1981 (Qld) states that if you are married with children and have an estate worth more than $150,000.00, your spouse will only receive $150,000.00 and the household chattels. Anything over that $150,000.00 amount must be divided equally amongst your spouse and children. Such an equal distribution must take place even if it will leave your spouse with insufficient funds to care for themselves and even if you have an estranged relationship with a child whom you do not wish to receive a share of your estate.
Further instances where intestacy has resulted in an unhappy outcome for loved ones can arise when:
- The deceased has separated from their spouse but failed to obtain a Decree Nisi before death. Even though separation has occurred, the law will still consider the deceased to be married. As such, pursuant to the intestacy rules, that spouse is entitled to a share of the estate;
- The deceased is not married and has no children. Pursuant to the intestacy rules, the estate will pass to the deceased’s parents even if the deceased was close to one parent and estranged from the other for the entirety of their life; and
- The deceased entered into a relationship which does not satisfy the legal requirements of a de facto relationship. By failing to meet the requirements of a de facto partner, the new partner of the deceased is not entitled to any funds from the estate.
How do I get a will?
It is always recommended that a will be prepared by a solicitor who is experienced in estate and succession law as wills are subject to strict formatting and legal requirements.
If a will is not prepared in accordance with the law, it may be found to be invalid by the Courts.
There have been a number of recent cases involving wills drafted in unprecedented formats, including in text messages and handwritten notes. Whilst the validity of a will is ultimately at the discretion of the Court, leaving your will open to interpretation can put your estate at risk of exorbitant legal fees, lengthy legal disputes and high levels of uncertainty.
An additional benefit of instructing a solicitor to prepare your will is that it will ensure you have an estate plan in place which best meets your needs and wishes. In particular, solicitors will be able to assist you to protect assets at risk of being lost to estate litigation, protect a bequest you want a child to receive if they are at risk of divorce or bankruptcy and minimise potential taxation and stamp duty implications for your beneficiaries.
When should I change my will?
You should update your will whenever your financial or personal circumstances change. Examples of changes that might signify the need for an updated will include:
(a) A change in relationship status (for example, you enter a new relationship, get married or separate from your spouse or de facto partner);
(b) A change in family circumstance (for example, you adopt a child, have children, become a step-parent or have grandchildren);
(c) A change in financial circumstance (for example, you acquire or sell assets); or
(d) The content of your will becomes outdated (for example, an executor or beneficiary dies or you no longer own assets that were specifically bequeathed in your will).
If you would like further information, or would like to book a consultation with an estates and succession solicitor, please contact ABKJ Lawyers on 07 5532 3199.