die without a will

Your will is left behind for loved ones to use as instructions on what to do next. This important document set out exactly how you would like your assets to be managed. However, not everyone takes the time to create a will, and the consequences of dying without one can be significant. So what happens if you die without a will?

Dying without a will: Intestacy law

Dying without a Will is known as dying intestate and it’s surprisingly more common than you would think. Research has revealed that only 40 per cent of Australians have a will. People often think about writing a will when faced with illness or the possibility of terminal illness. Almost half of the population would consider creating a will under these circumstances. Also, having children prompts two in five individuals to take the important step of drafting a will. However, a significant portion of the population remains unprepared for the inevitable.

So, who takes care of everything if you don’t have a will?

If you pass away without a will, there’s a chance that your assets won’t be allocated the way you would have liked. When there is no appointed executor, the administration of an intestate estate requires someone to step up and take responsibility for managing your estate. This application is referred to as an application for a grant of letters of administration on intestacy. 

Usually, a spouse of a family member will apply for the grant, but disputes can arise if multiple people believe they should be appointed as administrators. The reality is that anyone can apply for administration of your estate, including beneficiaries, friends or creditors which can cause complexities and stress on your family during an emotional time. 

How are your assets distributed?

Not having a will in place essentially means that you won’t be able to choose who gets what, and the intricacies of this depend on your state or territory. If you have a loved one who has passed away without a will, we recommend speaking to a wills and estates lawyer to discuss laws in their area. They can provide guidance on the laws specific to the area, helping you navigate through the intricacies of intestacy.

Minimise the risks associated with dying without a will

The best way to protect your assets and your loved ones is by preparing a will. Even if you are young and healthy, getting organised now means that you are minimising the risk of your assets being left in the wrong hands. 

The best part is that creating a will is usually an easy and inexpensive task. With APS, you can now create your will online in around 30 minutes, or you can work alongside our lawyers to create your will and estate plan

Written by APS Wills & Estates Principal Lawyer Phillip Lambourne

Phil is a lawyer with over 35 years of experience in private practice and over 25 years of experience in the trusts and estate planning area. As Principal Lawyer with APS Wills & Estates, Phil provides advice and prepares documentation in the areas of Wills, Powers of Attorney, Probate and Estate Administration for clients across Australia. He also provides clients with conveyancing and property law, commercial law and state tax advice services.

When Phil isn’t working, he enjoys spending time with family, reading new books, and watching new shows with some good scotch whisky, red wine and cheese. Phil also enjoys playing trombone in the Melbourne Lawyers Big Band!