He didn't leave a will. What happens now

Date: Jun 02, 2009
Document Type: Newsletter

Most of us know what a will is, and if we think about it (which often we don't) we know we should have one. Many Australians, however, do not have one, and this can cause extra expense, delays and complications when they die.

Remember, however, that jointly owned property will go automatically to the surviving joint owner, so there is not a problem with jointly owned bank accounts, investments and homes. Problems can occur with assets just in the deceased's name, with who will administer the estate, and of course who gets what.

The first step is to have an administrator appointed by the Supreme Court - an administrator is the equivalent of an executor where there is a will. An administrator must normally be a beneficiary, someone who will receive a share of the estate, and if there is no suitable beneficiary available and willing, then the expense of using a Trustee company or the Public Trustee will be incurred.

The law provides for who gets what when there is no will. A spouse, or a de facto partner if the relationship has been for at least two years, will receive everything if there are no children. If there are children, the surviving partner will get:-

  • A home in which they were living before the death,
  • The household chattels (belongings)
  • The first $200,000 of any remaining assets,
  • Half of the then residue

The other half of the residue goes to children equally. If there is no surviving partner, children share equally in the whole estate. What if there are no children either? The law sets out a list of beneficiaries who will take if there is no-one from the preceding class and these are:-

 

  • Parents
  • Brothers and sisters,
  • Half brothers and sisters,
  • Grand parents,
  • Aunts and Uncles.

What happens if there is still nobody? - and that does happen. It goes to the Crown, the state government. The good news, however, is that the government gives consideration to claims by people who could be seen as having a moral claim. An example of this might be someone who has been treated and raised as a child, although never formally adopted, and with repartnering after a relationship breakdown being common today, step children are found in many households. Another example might be of two old friends who although not living together have helped one another and seen one another constantly as they aged.

The succession rules outlined above do not prevent a court making an order under the Succession Act, making provision for an "eligible person" under that Act. Eligible persons include partners or former partners, children and dependents or former dependents.

There is a simple lesson out of all of this - if you want to make sure that your life's possessions will go where you want them to go, make a will!

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