Where there is NOT a Will, There is a Way

Date: Jul 02, 2009
Document Type: Newsletter

Around half of all Australians do not have a will, so they will not have a say in what happens to their estate when they die! Surprising, but true.

Of course for some it does not really matter: the less fortunate may have nothing to leave, but more common is the case where all property is owned �jointly� with a partner.

The home of most married or partnered Australians is owned as joint tenants, and jointly owned property passes to the surviving owner on the other owner's death, regardless of whether or not there is a will, and in fact despite what any will might say. The same rule - lawyers call it "survivorship" applies to all jointly owned property, such as bank accounts and shares.

If co-owned property is owned as tenants-in-common, the property is owned in specified shares, and a share can be left by will. This type of co-ownership will be spelt out in the ownership documentation, as will the shares, which may vary from 1% to 99%. The other major type of asset not affected by a will is superannuation, because superannuation benefits are not actually owned by the fund member.

Benefits are under the control of the fund trustees, who will decide who gets what if the member dies. Members will have signed a nomination form, which in some circumstances can bind the trustees, and the trustees will determine the distribution of the benefits. If, for example, the benefits are going to a widow or widower, they go direct, without forming part of the deceased's estate.

If you die leaving property not dealt with as above, then Parliament has determined who gets what, and this has just recently changed.

The first point to remember is that there must be an Administrator appointed, who is the equivalent of an Executor. Normally this must be someone who will be a beneficiary, but may end up being a trustee company. Normally, an estate will cost more to administer where there is no will, and substantially more than the cost of a will.

If the deceased leaves a partner, married or de facto, and no children, the partner gets the lot. To qualify as a de facto partner, the relationship must have been for at least two years, or there must be a child. If there is a child or children of the relationship, the partner still gets the lot. If there are no children of the relationship, but the deceased left not only a partner but other children, the partner receives the personal effects, the "statutory legacy", and half the then remainder. The deceased's children share the other half. The statutory legacy is an amount of $350,000, which is indexed as from December 2005. The surviving partner also has the first option to acquire assets from the estate.

If there is no surviving partner but they have surviving children, those children share the estate.

The law provides a successive chain of possible beneficiaries, each class only being considered if there is no one in the preceding category. These are:-

  • Parents,
  • Brothers and sisters, including half brothers and sisters,
  • Grand-parents,
  • Aunts and uncles, with nieces and nephews taking if an aunt or uncle does not survive the deceased.

The lesson of all of this - if you want your estate to go as per your wishes, if you want to leave any specific gifts, and if you want to choose who will administer your estate, make a will! It will also make managing your affairs easier, quicker and cheaper than if you do not have a will. For most of us , they are good enough reasons to make a will - and to make sure it stays up to date.

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