What happens to your property if you die without a will

Whether you're old or young, making up a will is important because you don't want your assets going somewhere you don't want. (Image: Getty)

Writing a will is an activity many Australians, especially younger folk, don't give much thought to.

But even if you're young, writing down your post mortem instructions will save your loved ones much unnecessary stress during a time of grief.

"A will gives legal effect to your wishes… It helps to reduce arguments because it is clear what your wishes are," said UNSW Law professor Prue Vines.

If no will exists, you will die "intestate", which means assets – also known as your estate – will be passed to your next of kin according to local laws.

But this means the inheritance could go to surviving relatives that you may not wish to provide for.

UNSW Law cited a real-life example from the NSW Trustee and Guardian to demonstrate this: a 21-year-old woman was killed in a car accident that led to a $200,000 insurance payout. This amount was evenly distributed to her mother and father according to intestacy rules. 

This is despite her father abandoning the family before the woman's birth, and making no contact with his daughter during her life.

Who will inherit if you don't have a will?

While intestacy laws vary between states and territories, there are still a lot of nationally common attributes.

"In all Australian states there is a clear priority for the spouse, who will inherit most of the estate. The spouse includes married, de facto and civil partnerships, both heterosexual and same-sex partners," said Vines.

While you can't be married to more than one person in Australia, you could end up with multiple spouses due to de facto relationships.

Next on the list are the deceased's children, then the grandchildren and any other descendants beyond.

"If there is no spouse or children, the estate will then go to parents, then other relatives. How far that goes varies across jurisdictions. In NSW, the furthest relative to take is a first cousin."

What if you don't have any next of kin?

If you don't have any surviving relations closer than a first cousin, the estate is passed to the state or territory government.

UNSW Law cited a real example from the NSW Trustee and Guardian where a man passed away without a will and his authentic birth documents could not be confirmed.

So this meant a next of kin could be found, and his estate of $180,000 went to the public purse.

When should you write a will?

Any Australian over 18 years old with the minimum "basic capacity" may make a will.

"To make a valid will you need to be able to understand what property you own, what the effect of making a will has and to understand who would normally have a moral claim on you," said Vines.

"This basic capacity must not be marred by delusions or fraud or undue influence."

In practice, most people won't write a will until they have enough assets to worry about handing over to loved ones.

For those with children, appointing a guardian for them in the will is critical. If both parents die, that testamentary guardian will be responsible for taking care of the children in the absence of any other court order.

How do I create a will?

The traditional method is to see a solicitor. She or he can ensure the document is legally sound and advise you according to your personal circumstances.

But of course a legal professional's time is expensive.

These days there are inexpensive "will kits" that can be purchased at places like newsagents and supermarkets. These contain forms with predefined fields to fill out. 

These have less flexibility for unusual personal circumstances or wishes but are far cheaper than seeing a lawyer face-to-face.

Consumer group Choice reviewed a variety of different Australian will kits back in 2018.

When should I update my will?

Major life events, especially concerning relationships, can void an existing will. So an update must be performed upon such occurrences.

"Wills may be revoked by marriage or divorce. If the entire will isn’t revoked, then some gifts may be revoked by marriage or divorce," Vines said.

"So, it’s probably best to make a new will after any major life event."

In the absence of such events, a review every five to 10 years is recommended to refresh the assets.

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