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dying without a will

Dying without a Will

It may not surprise you to hear that more than half of Australian adults don’t have a Will – and over a third of those don’t know what will happen to their assets after their death. Scary? Perhaps it’s because of our line of work but the thought of so many people not having a Will makes us breakout in goosebumps. Whatever the reason might be for not having a Will, this article explores dying without a Will.

Executors versus administrators – what’s the difference?

Wills say who the executor of your estate is, right? That is, the person(s) in charge, the one(s) who can do all things and sign all documents and tell organisations what to do with the assets they’re holding – banks to release money, share registries to transmit shares, etc. Without a Will, there is no executor. This role needs to be taken on by a person or persons who can show that they are the main beneficiary of your estate under intestacy laws and that they’re willing to take the mantle and sort out the estate. These will be your Administrators.  Now, organisations holding assets don’t know what your family tree looks like, they don’t have proof of anyone’s authority and they don’t have a black and white document (i.e. a Will) to show them what to do. In a nutshell, dealing with organisations in a deceased estate without a Will is very often an exercise in frustration. And nope, it’s not a foregone conclusion that your spouse or your kids will receive your estate and be your Administrators – it’s up to what the law says at the time.

Who are the beneficiaries under NSW intestacy laws?

The exact hierarchy and division of who gets what in an intestate estate can get a little complicated but here is a basic rundown.

Got a spouse and kids with your spouse? Your spouse gets everything.

Got a spouse and kids from a previous relationship? Your spouse gets your personal effects, a “statutory legacy” – there is a mathematical formula on how to calculate what this is – and half of what is left over. Your kids? They share the other half between them.

Got more than one spouse? You’ve got the heart of a lion and your spouses will share equally in your estate. This includes married spouses (separated but not divorced spouses included) and (all of) your de facto spouses.

Got kids only? They’ll share equally in your estate. Adopted kids are included, stepkids are excluded.

Got no spouse or kids? If your parents are alive, they’ll receive your estate equally between them.

Got no parents? Your full and half siblings will share in your estate. If any of your siblings predecease you leaving kids, their kids will receive their parent’s share.

Got no siblings? Your grandparents will receive your estate.

Got no grandparents? Your full and half aunties and uncles will share your estate.

Got no uncles and aunties? Your first cousins will receive your estate.

None of those? Here’s where most peoples ‘big bad’ comes in – that’s right, the State government will get the whole of your estate.  Mind you, it’s not every day that this happens, there are a whole lot of other relatives that will need to be found before this could happen.

Exhausted from reading the big list? That’s nothing. Imagine having to prove that your family tree is actually your family tree. That means getting together all the Birth Certificates of everyone who will benefit from the estate, the Death Certificates for each person that would have benefited if they hadn’t predeceased you, the Marriage Certificates and Divorce Orders for every relationship you’ve ever had, proof of any de facto relationships. And that’s only the beginning.

Family disputes and intestacy?

If one of the main beneficiaries decides to be a good Samaritan – or they’re just sick of waiting for someone else to put their hand up to be the Administrator – they’ll need to ask for the consent of all the other beneficiaries – big and small – if they need to apply for a Grant of Letters of Administration. If there’s bad blood between family members and they have an issue with the good Samaritan – don’t trust them or just want to make their life difficult – this can add an extra hurdle to sorting out your affairs.

Why is having a Will important?

We deal with this every day. We want to look out for your best interests. Please get a Will. If not for you, for the loved ones you leave behind. We know you don’t want to leave a legacy of frustration and distress because you didn’t get around to doing a Will. Doesn’t matter if you’re a pauper or a billionaire – a Will allows your estate to be sorted out with far greater simplicity than without one. And the best part? You actually get a say in who your beneficiaries are and who is in charge of making sure your wishes are carried out. Some things are just no brainers.

We promise getting a Will doesn’t have to be painful. You don’t even need to have a concrete idea of everything that needs to go in your Will before you see a lawyer – we’re here to give you advice after all.  If you want an easy peasy pain-free experience – and the feel goods of getting this important job done for your family – we can help you out. You don’t even need to travel. Book in a free 10 minute chat with a lawyer here, see if you like us, and we can sort the rest out for you from your home. 

We’ll look after you.

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