What happens if I die without a Will?

By Mildwaters Byrth Team

If you die without a Will you could be leaving your loved ones with a lot more pain and heartache than just the grief of losing you. Protect your family from this unnecessary stress by ensuring that you have a valid Will.

If you die without a Will then the law determines who receives the benefit of your estate.

If you die without a Will, your estate is left among your blood relatives in the following order:-

if you have a spouse and no children then to your spouse
if you have children and no spouse then to your children equally
if you have children and a spouse, then all personal belongings plus the first $100,000 of your estate plus half of the rest of your estate to your spouse and the other half of your estate to your children
if you don’t have a spouse or children then to your parents
if you don’t have any of them, then to your sisters and brothers
if you don’t have any of them, then to your grandparents
if you don’t have any of them, then to your aunts and uncles.

If you die without any blood relatives, then your estate will go into government coffers.

More often than not, the application of the above rules achieve a result which the person that has died would not have wanted.

An example of the mess that can be left behind if someone dies without a Will is in the following case study.

Case Study 1: Scott dies without a Will leaving a wife Kathy and their children Ben aged 8 and Jenny aged 6. Scott owned the matrimonial home and other real estate as well as $200,000 cash. As Scott didn’t have a Will, Kathy receives his personal belongings, the first $100,000 of Scott’s estate and then a half share of the rest of Scott’s estate. The children Ben and Jenny receive the other half share. This results in Kathy sharing ownership of the matrimonial home and other real estate with her children.

The problem with this is that Kathy cannot sell the real estate or mortgage it or otherwise deal with it while her children are under 18 without making a special court application which takes time and money. Kathy also really needed all of the $200,000 to raise the children, but she only has access to $100,000 because the other $100,000 has to be invested in the names of Ben and Jenny.

This leaves Kathy in a pickle as she can’t do the things that she wants to do and needs to do for her young children. She wants to move into a house with a smaller yard so it is not so hard for her maintain and she needs to sell the investment properties to finance her living expenses, but she can’t do any of this because Scott died without a Will. All this could so easily have been avoided if Scott had had a Will leaving everything to Kathy and then to the Ben and Jenny only if Kathy had died before him.

What happens if I die and I leave an out of date Will?

If you die leaving an out of date Will, this can be as bad if not worse than dying without one at all.

The following is an example of what can happen.

Case Study 2: Bruce and Lisa live on a farm and have Wills prepared leaving their assets, including their farm to their 3 young children if they both died. Thirty years later, their son John has been working on the farm for 15 years already and their 2 daughters have been financially independent for some time and are married with children of their own.

Bruce and Lisa give some thought to new Wills as they know that they need to change their Wills to leave the farm to John and the off farm assets to their 2 daughters, but they never get around to it. Bruce and Lisa die leaving their 30 year old out of date Wills. John is then forced to sell the farm to pay out his 2 sisters an equal share of all the assets. John is devastated as his livelihood has been taken away.

Can’t my family just sort it out afterwards?

You might think that your family gets along well and that they could agree to just distribute your estate in the way that they see fit, irrespective of the terms of your out of date Will However even if your family agrees to do this, your family are effectively transferring assets between themselves and this may incur unnecessary taxes meaning that the government will effectively end up with some of the money from your estate that your family should have received.

In addition, the “sorting out” process can generate difficulties amongst family members that would never have arisen if there had been a proper Will in place before the deceased family member died.

What happens if I just do a Will myself?

This is another case of the result often being as bad if not worse than dying without a Will at all.

The Wills Act 1936 has very strict rules about what is required for a Will to be valid. If people try to do a Will on their own, by either writing it themselves or by using a Will kit, so often the Will is invalid because the formalities required for a valid Will are not completed.

If someone has clearly intended that a particular document was to be their Will, then the executor of that Will, who is often one of the loved ones of the deceased, must try to use that document to administer the deceased’s estate. As a result of the lack of proper formalities with the Will, the administration of the estate often costs thousands of dollars more than it otherwise would have if the Will had been prepared properly in the first place.

What’s the point of doing a Will anyway if it can be challenged?

It is important to have a valid Will as in most cases, the loved ones of the deceased respect the wishes of the deceased and honour the terms of their Will.

Sometimes a claim can be made against an estate, but only a very limited group of persons can make a claim including a marriage partner, a domestic partner and children. In some cases, parents, siblings and step children can make a claim too.

In addition, even if someone from this limited group of people try to make a claim, it doesn’t mean that they will be successful, as their success will depend on many factors.

If you consult a lawyer about your Will, then there are suggestions that your lawyer can make about how you can avoid a claim against your estate.

Look after your family

Everyone over the age of 18 years should have a lawyer prepare a Will for them. This will ensure the Will complies with the formalities required by the law of South Australia for a valid Will. This will also mean that your hard earned dollars end up where they should – in the hands of your loved ones rather than being spent on legal fees to fix up the mess left behind or on unnecessary taxes.

Contact us today to arrange for a new Will to be prepared to make sure you have done all you can to look after your family.

What happens if I die without a Will?