If a person dies without a Will, the Law sets out how their property will be distributed, after all the debts have been paid.
These rules apply to everyone and do not take into account an individual’s wishes or personal situation.
If you die without a Will you are said to die intestate. The word “intestate” is derived from the Latin word “intestatus” meaning a person who dies without a Will. If you die with a fully valid Will, you are said to die testate.
Intestacy may occur not only where a person fails to make a Will but also for other reasons such as:
- the Will fails to properly dispose of all their assets
- the Will is not valid because it has not been signed and witnessed according to the Law
- the person is deemed to not have the mental capacity to make a Will
- the Will has been poorly drafted and the legal rules of construction have not been followed.
Sometimes a person may die partly testate and partly intestate. This occurs where part of the Will is valid, but another part is considered to be invalid. This may result in even more inconvenience, delay and expense than administering a full ‘intestate’ estate.
Potential Difficulties if there is no Will – Many people believe the Government takes their assets if they die without a will.
This isn’t necessarily true. It could only happen if you have no living next of kin.
However, if you die without a Will, your assets will be distributed according to a legal formula. This might mean that your assets do not end up with the person you would have chosen.
The biggest drawback with not making a Will therefore, is that you have no say as to who inherits your assets. It is also more expensive to administer an estate without a Will, and the extra cost will be deducted from your assets. Finally, any applicable taxes or duties such as capital gains tax, stamp duty, income-tax etc, will also be payable to the Government.
Without a will, it can be hard to work out who should apply for permission to deal with the deceased’s estate. If you die intestate and there are no eligible recipients of your assets, pursuant to the legislation, the State is entitled to keep everything.
Legislation is enacted in each State and Territory of Australia defining who is a person’s next-of-kin, and what portion of the estate they inherit. The legislation of each State and Territory is slightly different and is covered by various State and Territory Acts.
For more information, please see the ‘Wills and Probate Acts’ for your State or Territory listed in our Useful Organisations section.