To Will or not to Will? Let’s explore the legislative rules that apply in the event of you passing without one.
What are the Rules of Intestacy?
If you don’t have a will, you are said to have died ‘intestate’ upon death. As such, the Rules of Intestacy will apply.
This means the distribution of your assets and estate will be determined by the laws of the State or Territory you live in. Your next of kin will be responsible for distributing your assets and making decisions such as funeral arrangements, estate management, and legal decisions. Across Australia, each State and Territory decides who the ‘next of kin’ is differently.
How will my assets be distributed?
Your next of kin will need to apply for a Court Order, known as a Letter of Administration, to begin the process of distributing your estate. The distribution must follow a statutory method set by each State or Territory. In Victoria the order of distribution is:
- Your partner
- Children
- Parents
- Siblings
- Grandparents
- Aunts and Uncles
- Cousins
Applying for a Letter of Administration can be complex and time consuming. For example, what happens when you do not have a ‘next of kin’ or if your ‘next of kin’ is unwilling to act as the administrator of your estate?
If there is no next of kin, depending on where the death occurred, the hospital, police, or the State Trustee will take care of your funeral arrangements.
What problems can intestate rules cause?
The issue at hand is that you have no control over the distribution of your estate. Your estate will be divided according to the fixed intestacy rules whether you were close to your nearest legal blood relatives or not. Friends are not considered in the statutory order, and if you have no other relations, your assets all go to the State. Can you imagine the stress this could cause family when they are navigating through the loss of the loved one coupled with not knowing what your wishes were?
To avoid the Rules of Intestacy applying, it is best to create a valid Will that deals with your assets according to your wishes. It is also good practice to speak to a person you trust to take on the task of distributing your assets.
Decisions about Will-making can be difficult and confusing. W Legal Group can help make the process easier so you can be assured that your future wishes are met.
