Making a Will is not always on the forefront of someone’s mind as they either feel uncomfortable thinking about death or they think they are too young to make a Will. However, dying without a Will can create more work for the loved ones you leave behind.
So, what happens to your assets if you die without a Will? In Victoria, if you die without a Will in place, this is called dying intestate. Meaning that the laws of intestacy (found in the Administration and Probate Act 1958) dictate the distribution of your estate
The laws of intestacy can be complex, but distribution will usually be made to the following people in this specific order: –
- Your lawful spouse or domestic partner, and if you have no partner then;
- Your children (including adopted children but excluding step children), and if you have no children then;
- Your grandchildren, and if you have no grandchildren then;
- Your parents, and if you have no parents then;
- Your siblings, and if you have no siblings then;
- Your remote next of kin; and if you pass away leaving no living family members then;
- The State Government of Victoria.
If you have a blended family (say, a current partner who is not the parent of your children from a previous relationship), then there are some more complex formulas applied to split the assets if they are over a certain threshold.
This above order of distribution gives no thought to those you were closest to in your life and is often, not in accordance with your wishes or preferred allocation. It may also be an insufficient distribution for your family members if you have a dependent child or sibling who requires a greater share in your estate due to a disability.
The hierarchy of distribution can cause great stress to those you leave behind as it may go against what you would have wanted.
Let’s look at an example:
Tayla is 30 years old and has never engaged a law firm to draft a Will as she thinks she is too young to make a Will. However, Tayla is single and her parents passed away young. She does have an estranged biological sister that she has not seen for over 5 years.
Tayla had always told her best friend of 20 years, Lauren, that if something happened to her, she wanted Lauren to keep all her personal belongings and use her money to pay for her university fees. Unfortunately, Tayla passes away and as per the laws of intestacy the Court distributes her estate to her estranged sister. The only way Tayla would have ensured that Lauren inherited her assets was to create a legally binding Will.
Having a Will can also remove any stress surrounding the guardian of minor children. Your Will allows you to address your wishes of who becomes the guardian of your minor children if you were to pass away. Without your wishes expressly stated in a binding Will, the Family Court may appoint a guardian who you would never have otherwise chosen for your children.
It might not be an enjoyable subject to consider but having a legally drafted Will, no matter your age or circumstances, can reduce significant stress, confusion, legal fees, and complications for those left behind.
If you don’t have a legally binding Will, would like to update your current Will or are interested in discussing the contents of this article further, we have an experienced team of lawyers who can provide you with advice and assist you with your estate planning. Please call our Drouin or Warragul offices to make an appointment or book a telephone appointment online. We would be pleased to discuss your specific circumstances with you and provide you with some peace of mind.
Authors:
Emily Farr – Lawyer
Tessa Hoogerbrugge – Partner
Disclaimer: The information in this post is general in nature. This does not constitute legal advice and should not be relied on as such. Please contact one of our Lawyers if you are seeking advice about a specific legal matter.
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