Do I need a Will? This is a question often asked by clients when considering their estate planning issues. The question is better put like this: – Who will sort out my estate, and who will get the benefit of all those things (money, real estate, property) I have accumulated throughout my life?

Rarely is it a good idea or beneficial to delay making a will until the end when it may be too late or to not have a will at all.

So what happens to an estate when someone dies ‘intestate’ (without having a will) and why is it important to make a will?

The following are some relevant issues relating to what happens to an estate if there is no will and then comments in contrast of why having a will is important.

Without a Will

• The person who administers the estate (the administrator) will be determined in order of priority by the rules of court. The resulting appointment may be someone who for various reasons may not be appropriate or who does not have a good relationship with the rest of the family.

• A bank or financial institution will in most, if not all, cases require an application to be made to the Supreme Court for Letters of Administration (the appointment of an administrator of the estate). This will be required even for small amounts of money held by a bank. Often the cost of obtaining a Grant of Letters of Administration may exceed the amount of money held in a small estate and sometimes the more cost effective option is for the bank to keep the money and not make an application for a grant of letters of administration.

• The ‘Intestacy Rules’ found in the Succession Act Qld determine who the beneficiaries will be. Examples of this are as follows:

(a) If the deceased was in a de facto relationship at the date of their death but they are still married (never divorced), the two spouses will share the estate equally.

(b) If the spouses had children to the deceased, the spouse/s will only inherit the contents of the house and $150,000. If there are two spouses, this amount is divided equally. The spouses then share the balance of the estate with the deceased’s children in the shares determined by the intestacy rules.

(c) Under the intestacy rules step-children of the deceased are not entitled to a share of the estate.

The effect of an intestacy is that the deceased loses the ability to bequeath the estate according to their preferences and wishes. This means that:
• a spouse may not receive all of their partner’s estate;
• a married but separated spouse may receive a share of the estate;
• a beneficiary may be someone who is estranged from the deceased and who the deceased would not wish to receive a benefit ; or
• someone with whom the deceased did have a good relationship, for example, a step-child or a friend, is excluded as a beneficiary.

With a Will

• Your administrator will be the person/s you nominate as your executor.

• A bank or financial institution will often release small amounts of money because there is a will without requiring Probate (proof that the will is valid). Probate may be required by banks but usually where they are holding a significant amount of money in the deceased’s account.

• The Will determines who the beneficiaries will be and their entitlements because they are named as beneficiaries.

A will has the following important features:

1. There is certainty of distribution to the persons who are nominated in the will as beneficiaries.

2. The ability to name trusted executors to ensure the estate is properly administered.

3. It allows for estranged family members to be excluded from the estate and for an explanation to be given of the reasons for doing so.

4. Specific items can be gifted directly to persons named to receive those gifts

5. The will can create various testamentary trusts which allow for the distributions by the trustees in accordance with the wishes of the person making their will.

6. The ability to control and direct distributions. This would be beneficial if a beneficiary has a disability, mental health or drug issue and there is a need to protect that person’s share of the estate or the share from being dissipated inappropriately.

7. The will can provide for the application of tax on various assets.

8. A will can nominate an alternative beneficiary if one of the named beneficiaries should die before the deceased person.

9. The will can create other interests in property such as:

• ‘Life interests in real property’. A right for a beneficiary to live in the family home during their lifetime and then for the home to be transferred to other named beneficiaries.

• ‘Mutual wills’ where the maker of the will agrees with their spouse or partner that they will not change the terms of their will in the future.

• The way in which debts are treated or forgiven.

10. The will can also deal with the personal interests of the deceased including:
• his/her final resting place;
• organ donation; and
• guardianship of and financial provision for children.

There is no doubt that the benefits provided by having a will far outweigh the absence of a will. Making a will is one of the most important strategies in planning for the future and in providing for the needs of your family and their future. If operating a business a succession plan and Will ensures that your business has a way forward upon the death of the owner or director.

Please consider making a will to ensure your intentions and expectations are fulfilled after your death.

We trust that this information has given the reader some insight into the treatment of estates whether with or without a will and why it is essential to have a valid will which brings about the certainty required by the deceased and fulfils the expectations of named beneficiaries when dealing with a deceased’s estate.

Please contact one of our offices should you wish to discuss the issues raised in this article or make an appointment with one of our Wills and Estates Team Members. Our team members will provide you with our Will pack / Questionnaire so that you can consider the needs of your estate and have the necessary information readily available for your appointment.

Contact Us

To speak to one of our experienced wills & estate lawyers about estate planning, call 1800 999 529, email mail@rmold.newwebsite.live or submit an enquiry below.