It’s surprising how many Australians don’t have an up-to-date will, or any will at all. If that’s you, and you want some control over what happens to your assets after you’ve gone, the beginning of a new year is the perfect time to get a legally binding will in place.
There are several reasons why people often don’t have a will. For many, it simply falls in the too-hard basket. Talking about death is not really a common topic so many people think creating a will is going to be a long and complicated process. Yet in most cases, it’s really simple.
Also, some people mistakenly believe that they don’t own enough to justify a will. But what they forget is that we’re all worth much more dead than we are alive when you factor things like superannuation and life insurance into the equation.
Ultimately, however, probably the biggest reason people don’t have a will is procrastination – it’s on their to-do list, but it never makes it to the top of the pile.
Why you should have a will
The main reasons to create a will include:
- to appoint someone – an executor – who has the authority to step into your shoes and tend to your affairs when you die
- to communicate your wishes regarding the distribution of your assets after your death, and
- to try to avoid disputes that may arise if you don’t create a will.
Many of the disputes we deal with at Maurice Blackburn Lawyers result from people not having a will, or having one that is out of date and doesn’t reflect the deceased’s circumstances at the end of their life.
Sometimes people think they have to have all of their affairs sorted before they can set them down in a will. But provided you’ve got a basic plan around what you want to do, it’s important to get that in writing. Then you’ll have an executor appointed, so you won’t have a fight about who’s going to administer your will, plus you’ll have some instructions in place.
So what happens to your assets if you don't make a will?
You will be considered ‘intestate’ if you pass away without a will. The legal system would then distribute your estate according to a formula, known as an intestacy formula that has been set out in an act of parliament. Basically, your assets will be distributed among those you’ve left behind according to their relationship to you. Often, this starts with a spouse or children.
By not having a will, you essentially lose control of your assets. You’re effectively delegating the decisions about the distribution of your estate to the legal system. Though every state and territory has its own intestacy regime, the basic principles are the same throughout Australia.
Avoid family drama and disagreements
To minimise disagreements among your family members after you're gone, having a will is a really good place to start. Then, at least you’ve expressed what your wishes are, and your survivors – and the legal system – have something to go by.
Give careful thought as to who you think you owe a responsibility to when you’re providing for them in your will. People will say to me, “I want a will that’s absolutely challenge-proof.” Sure, you can make a will that’s pretty solid, but if you leave out a child or your spouse, for example, then you run a real risk that they will challenge your will.
It’s important to note, however, that you’re under no obligation to treat your children equally in your will. For example, the law doesn’t say that I have to treat my four kids the same. It just says that I need to leave adequate provision for them – basically, have they got enough to get by?
To protect yourself, your assets and your loved ones, it’s time to take your will out of the too-hard pile and put it in the must-do pile.