Benjamin Franklin said that nothing in this world is certain but death and taxes. Considering the certainty of death, it is no surprise that many people have a desire to leave a lasting legacy on this world, and for many, this legacy takes the form of their surviving loved ones. It is surprising though, to find out that 52% of Australians do not have a valid Will in place. So, what happens if you die without having made a Will?
If you die without having made a Will then your assets will be distributed according to a set of laws written by the state known as ‘the rules of intestacy’. Under the rules, the first $150 000 of your estate goes to your spouse. If there is anything left over, then the remaining assets are distributed between your spouse (in addition to the $150 000) and your children (if any). If you have no surviving spouse or child, then the whole estate would go to your parents, and if no parents then to your siblings, if no siblings then to your grandparents, and if no grandparents then to your aunts and uncles. If you have no surviving family then everything would to the government (the certainty of taxes).
For some, the rules of intestacy don’t sound too bad, but these rules can lead to some unfortunate outcomes. Say the assets of your estate are less than $150,000. After your death, it would all pass to your spouse leaving nothing behind for your children. Without a Will, your assets could pass to a parent or family member who’s never been involved in your life. Not having a plan in place can often lead to disputes between family members and this is not the legacy you want to leave behind.
The importance of a Will goes beyond your assets. A Will can help protect your kids. In the event both you and your spouse passed away without appointing a guardian under a Will, then whoever you wanted to look after your children may have to undergo an expensive and lengthy application process with the Family Court to become a legally recognised guardian.
If these aren’t reason enough, consider that it may actually be cheaper to have a Will than to not. In Queensland, not all Wills require probate. However, for every estate without a Will, an application has to be made to the Supreme Court and this includes a filing fee and usually involves solicitor’s fees. Therefore, in some cases it can be cheaper to do a Will. In any event, having a Will can mean much less paperwork for those you leave behind.
If you are one of 52% of Australians that don’t have a Will, chances are that you would like to get one, but like many things in life, you just haven’t got around to doing it. Understandable considering that no one wants to devote their lives to planning to for their death, but not having an estate plan can be a disaster, not for those departing but for the loved they leave behind. Whilst death may be a certainty, one that thing most certainly isn’t, is the timing of it.