What Happens When You Die Dying Without a Will?

A valid Will determines how your estate is dealt with after you die. Your Will can appoint an appropriate family member, trusted friend, or professional to administer your estate (your executor), nominate guardians for young children, determine who will receive your assets, and give direction for specific funeral and burial arrangements.Without a Will, the finalisation (administration) of your estate could be left to somebody you would not wish to involve, and the distribution of your assets will be pre-determined by legislation. This is likely to be more stressful, complex, and costly for your loved ones.No matter your age, health status, or financial circumstances, dying without a will (also known as dying intestate) is likely to create additional stress for your family and may prevent you from having a final say in how your life earnings should be distributed.

What happens to your estate when you die without a Will?

If you die intestate, your assets are distributed according to pre-determined formulae set by legislation in the relevant jurisdiction. Essentially, the rules provide for a specific order of distribution to the deceased person’s next of kin, depending on the situation.

This distribution is referred to as the rules of intestacy or statutory orders, and each jurisdiction has a different process. Importantly, these rules may not consider the wishes of the deceased person nor their unique circumstances.

What can go wrong when dying without a Will?

Missed Beneficiaries

Family members and others important to the deceased may completely miss out on an inheritance when dying without a will.

Unfair Asset Distribution

The formula set out in legislation attempts to reflect society’s expectations as to who should benefit from a person’s estate. However, many families are not ‘standard’ — they are often blended, and there can be unequal distribution of personal wealth between family members. Dying intestate may result in disproportionate distribution or exclude more needy beneficiaries.

Distribution to Unintended Persons

Assets may be distributed to family members with whom the deceased shared no significant or meaningful relationship, causing further unintended consequences.

Legal Disputes and Family Conflict

More importantly, dying without a will can lead to legal claims on the estate by family members who miss out. These disputes can involve significant legal costs, reduce the balance available for distribution, and create lasting family unrest.

More convincing reasons to make a Will

An executor is the legal personal representative appointed under a Will to oversee the administration of the estate. An administrator has a similar role but is appointed by the Court when a person dies intestate.

Generally, the next of kin may apply for this role; however, this may not be desirable in some circumstances. Family dynamics can be complex, and sometimes it is preferable for a third party to be involved, removing emotional factors and bringing impartiality to the role. Only through a Will can a person nominate a specific executor.

Additionally, failing to make a Will may forego opportunities for estate assets to be treated more tax-effectively or to protect vulnerable beneficiaries. This is often achieved through a testamentary trust—a trust contained within a Will that comes into effect upon the testator’s death.

A testamentary trust can provide flexibility and control in asset distribution amongst beneficiaries and may assist in protecting assets from third parties and creditors. Assets can be preserved to pass through future generations, with the trust able to cater to different scenarios.

Summary & Next Steps

Having a Will gives you a voice after you die. Your testamentary wishes can be clearly made known, and your beneficiaries properly identified. Good estate planning also helps provide for more tax-effective distribution of your assets and protects vulnerable beneficiaries.

Regardless of your age, health, or financial situation, putting off making a Will does not make sense given the risks and complexities of dying without a will.

If you want to understand more about the implications of dying intestate or need help preparing a valid Will, call 03 5747 8251 or email [email protected] for professional legal advice tailored to your circumstances.