By Nicholas Kyriakoudes and Peter Bahlmann
For many writing a will is a confronting task. Thinking about death and planning how you will support your family after you die is a challenging thought. However, making a will is necessary for this purpose and should not be overlooked. While many people wish that the whole of their estate gets given to their spouse and children when they die, complications may arise if people do not make their testamentary wishes known and fail to execute a will.
What happens if I don’t make a will?
Although there is no legal obligation on a person to write a will, it is preferable that you do. It is also important that your will is professionally drafted (see https://hansonslawyers.com.au/the-dangers-of-self-made-wills/).
Executing a will is the easiest way to organise your estate in the event that you pass away. For example, gifts to children or a spouse may be expressly made in a will. Clear directions are made in a will which outline who is entitled to what property when you die. For example, you may choose to leave specific property to a specific person such as a child, other property to another child, or general gifts such as gifts of residue which comprise the rest of your estate to other beneficiaries who you choose. The important characteristic of a will is that you have free choice as to how and to whom you leave your property.
If someone dies without a will, that person dies intestate. This means that the devolution or transfer of that person’s property will be distributed to certain people according to a certain set of rules, the intestacy rules. The intestate has no say in the way their property will be distributed.
On intestacy, the people who you might like to receive something or who you may even have expected would receive something from your estate, may get nothing.
Conversely, a person you would not like or expect to receive anything from your estate may inherit some or all of your estate in accordance with the intestacy rules; for example, an estranged child. Though, such people – if they are eligible – may make a claim for family provision out of your estate (see https://hansonslawyers.com.au/contested-will/); involving that person in litigation against the estate with all the stress, time, cost and risk that comes with litigation.
Such uncertainty may be avoided by having a valid will that clearly names your beneficiaries and the gifts they are to receive.
The intestacy rules
The intestacy rules are the set of legal rules which determine who is entitled to what property when a person dies intestate. The intestacy rules are found in chapter 4 of the Succession Act 2006 (NSW) (https://legislation.nsw.gov.au/view/html/inforce/2010-05-19/act-2006-080#ch.4).
Who receives what from the intestate will depend on who survives the intestate. There is a hierarchical order of the persons who are entitled on intestacy. This order starts at the intestate’s spouse and finishes with the State if there is no surviving entitled persons. The general order of this hierarchy is:
- the intestate’s spouse receives their estate where there is no valid will,
- then if there is no surviving spouse their children will receive the estate,
- if there is no surviving children then their grandparents will receive the estate,
- if there are no surviving grandparents then their aunts and uncles will receive the estate,
- and if there are no surviving aunts and uncles then their cousins will receive the estate.
Intestacy can be complicated. For example, where the intestate has multiple spouses (including de facto spouses) or children from different relationships.
For example, under s 112 of the Succession Act if a husband dies without a will and is survived by his wife and children who are children of the couple, then the wife will take all of the intestate’s property. But if the wife predeceases the intestate then the children take the whole estate under s 127(1).
In the same example, if the wife survives the intestate but the children are not the children of the wife, then under s 113 the wife is entitled to her husband personal effects, a statutory legacy, and one-half of the remainder if any of the estate, with the children receiving the other remainder half in equal shares between those children. In this case the wife does not receive the benefit of the whole estate because of the existence of children of the intestate’s former relationship.
Complications to the intestacy rules
Additional complications to the intestacy rules apply when an intestate has multiple spouses. When this occurs, special rights may arise with respect of acquiring property of the intestate and sharing the statutory legacy. Complications also arise where there is a partial intestacy such as where a gift fails or where part of a will is void.
Why I should execute a will?
Given the complicated and fact dependent nature of the intestacy rules it is easier for certainty and for peace of mind to execute a professionally drafted will. That way, what you want to happen to your property after you die is made very clear.
Having a valid will executed avoids the imposition of the intestacy rules.
Professionally drafted wills provide peace of mind and clarity with respect to the distribution of estates and avoid the costly and complicated problems associated with intestacies.
If you would like to revise and review your existing will, execute a new will, or be advise of your rights please contact us on 42 222 666 or at firstname.lastname@example.org