What happens if you pass away without a valid will

Practicing as a lawyer dealing with estate planning, I frequently get asked, what will happen if I pass away without a Will? Will my children receive anything? Where does my estate go?

As a social experiment, I asked my parents, who answered “I have no idea” and “Probably to the government” (What a cynic!). Whilst ‘the government’ answer isn’t entirely incorrect, it is quite unlikely. A person would have to pass away with no spouse, children, siblings, parents, grandparents, nieces or nephews, cousins and no aunts or uncles for their estate to pass directly to the Crown.

If someone passes away without a Will, or without a valid Will, they are referred to as “intestate”. The distribution of their assets is then governed by Section 14 of the Administration Act 1903, which determines what percentage is allocated to the surviving family members. For example, if someone passes away leaving a spouse and two children, and the estate is worth more than $50,000, the spouse will receive the first $50,000, plus one third of the estate. The remainder of the estate, would then be divided equally between the children. There are a number of combinations similar to these to determine ‘Who gets what’.

Irrespective of whether someone passes away with or without a valid Will, an application to the Supreme Court is usually necessary, however there is security as to how the estate will be distributed.

The grief experienced by families when someone passes, is compounded if your family are also having to battle your financial affairs. Having a valid Will is not only the safest option to secure your estate, but the least emotionally taxing for your family. The “It will never happen to me” mentality is all too rife when dealing with estate planning.

Whether it be drafting your Estate Planning documents, or making an application to the Supreme Court, our Estate Planning Lawyers are here to help. Contact us on 08 6243 7544 for more information.


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The information contained in this article is general in nature and does not take into account your personal situation. You should consider whether the information is appropriate to your needs, and where appropriate, seek professional advice from a suitably qualified lawyer.

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