A Will is one of the most important documents you enter into during your life as it allows you to:
- determine who your estate goes to after your death;
- to make arrangements for the ongoing care and support of young children or dependents (elderly parent, sibling with
- a disability, etc); and
- appoint someone you trust to manage the distribution of your estate on your behalf.
Proper estate planning advice is essential as it helps reduce the likelihood of a successful claim against your estate, ensures that your Will is valid and complies with the relevant legislation, and makes sure you have taken into account complexities such as blended families, family trusts/businesses, and uneven distributions. The legislation is different in each state but, a well-constructed Will should simplify the distribution of your assets in accordance with your wishes. If you die without a Will, your family will need to apply to the Court before they can deal with any of your assets or, if nobody applies to the Court, the Public Trustee will be appointed and charge ongoing fees to manage the distribution of your estate.
If you die without a Will, the relevant Act in your state sets out how your estate will be distributed. The legislation is designed to provide a fair and orderly distribution of an estate. In Queensland, your estate would be distributed as follows:
If you have a spouse
If you have no children your spouse will receive your entire estate;
- If you have one child, your spouse will receive the first $150,000.00 and then split half of whatever is left with your child; or
- If you have more than one child, your spouse will receive the first $150,000.00 and one-third of whatever is left. Your children will split the remaining two-thirds between them.
If you are single
- If you have children, they will split everything equally between them;
- If you have no children, your parents will receive your entire estate; or
- If you have no children and your parents have already passed away, your next of kin* will receive equal shares of your estate.
If you have no family
- The Crown will receive your entire estate.
Case Study - Queensland:
- Sam, aged 62 has been in a de-facto relationship with Sarah for the past six years.
- Sarah has a 10-year-old child, Clarissa from a previous relationship.
- Sam has supported Sarah and Clarissa for the entirety of their relationship.
- Sam has two adult children Lily 25 and Bob 21 from his first marriage to Wendy.
- Sam has not maintained a relationship with Lily, Bob, or Wendy.
- Sam dies without a will.
- The house that Sam, Sarah and Clarissa lived in is in Sam’s name only and is worth approximately $750,000.00.
- He has other assets held solely by him including shares, bank accounts, a boat , and a motor vehicle with a total approximate value of $320,000.00.
- In accordance with the Succession Act in Queensland, Sarah as Sam’s spouse is entitled to $150,000 and the household chattels and one-third of the residuary estate with two-thirds of Sam’s residuary estate be distributed to his children Lily and Bob and his step-child Clarissa (as defined under the Act).
- Sam dying without a Will means that Sarah will need to lodge a family provision claim in order to stop Sam’s estranged children from receiving a large portion of his estate. Dying without a will may not only result in your assets being divided in a way that you had not wanted it, may also result in your loved ones having to incur additional time, effort and expense at a particularly stressful and emotional time.
*Your next of kin are considered to be: the brothers and sisters of the intestate; the grandparents of the intestate; the brothers and sisters of a parent of the intestate; the children of any brothers or sisters of an intestate who predecease the intestate; and the children of any brothers or sisters of a parent of an intestate who predecease the intestate.