A Will is a legal document that sets out who you want to receive your assets (estate) when you die.
Making a Will is the only way you can ensure your assets will be distributed according to your wishes. Studies show that at least 45% of Australians do not have a valid Will.
The rules applying to wills and estate administration differ from state to state.
NSW – NSW Trustee and Guardian
Northern Territory – Office of the Public Trustee
Queensland – The Public Trustee of Queensland
South Australia – Public Trustee South Australia
Tasmania – Public Trustee Tasmania
Victoria – State Trustees Victoria
Who can apply for permission to deal with the deceased’s estate if there is no will?
Generally, anyone over the age of 18 who is entitled to a share of the estate can apply to the Probate Office of the Supreme Court to administer and distribute the estate.
What happens to my assets?
If you die without making a valid will, you leave what is known as an “intestacy”. This means you have not validly disposed of some or all of your assets.
Many people believe the Government automatically takes their assets if they die without a will. This could only happen if you have no living next of kin.
If you die without a Will in New South Wales for example, your estate will be distributed according to a pre- determined formula, meaning that your assets may not end up with the person you would have chosen, and if your only living relatives are more distant than cousins, your estate will pass to the government.
The rules for distributing assets where there is no will are found in the Wills, Probate and Administration Act.
Particular problems can arise where both a spouse and a de facto survive the deceased.
Dying without a will also raises particular problems if a husband and wife die together. For example, they are killed in a car accident and have no children. If the wife dies instantly and the husband dies later in hospital, then in NSW for example, all of the wife’s assets pass to the husband. But this husband is dead too, so his assets, which now include her assets as well, pass to his next of kin. The net result is that the wife’s family miss out completely, because she died first and her assets immediately passed to her husband.
It is always best to get legal advice if you are the dependent or family of a person who dies without leaving a will. The rules of inheritance are sometimes complex, and differ across Australia according to state and territory laws.
What about lost wills?
This is more common than you may think. Of course you should look very hard for a lost will, including asking the bank and the deceased’s solicitor and accountant (and perhaps a trusted friend). It is important to search for a will. Useful places to check are:
- among the deceased’s papers and documents
- the deceased’s bank
- the deceased’s insurance company
- the deceased’s lawyer
- the deceased’s accountant
- the Public Trustee
- trust corporations.
It’s also worth checking trustee companies placing an advertisement in newspapers and the relevant state Law Society Journal – this would alert a solicitor who may have made the will. If everything fails and no will is found, the estate will be treated as an intestacy.