Intestacy rules

Under intestacy rules, the surviving spouse of a couple with or without children, takes their deceased’s spouse’s full estate. So why bother with a will? The answer depends on how you may hold your assets. Does your spouse run a business? Do you own assets jointly or hold any assets solely in your name?

If you have bank accounts/assets in your sole name that will need to be transferred over to your spouse and you do not have a valid will your spouse will need to apply for Letters of Administration from the Supreme Court of NSW. This process is more arduous and time consuming than if you had a will. Your spouse will need to satisfy the Court that they were not in a relationship or married to anyone else including providing copies of previous divorce certificates that you may not have in your possession. Your spouse will also need to satisfy the Court that they have made attempts to search for a will including costly advertising in the Law Society journal, writing to all the known banks/financial institutions, NSW Trustee and Guardian as well as any former solicitors who may have acted or dealt with your deceased spouse. This process is more stressful and costs more money than if you had a valid will.

Second and Subsequent Marriages

Nearly four in 10 marriages in Australia are second or subsequent marriages and for anyone remarrying, they’re often concerned with balancing the need to provide for their surviving spouse with the need to ensure that any children from a previous relationship are also looked after.

In the event you have no Will you may force your children from prior relationships to contest the estate against your spouse whom they may have a good relationship with. Adult children who have never resided with your spouse may not be eligible to claim against their estate in the future.

If your Will was made before you got married, marriage will have invalidated your Will. Divorce will not revoke a Will

Unless you have made a will that specifically refers to your upcoming nuptials a new marriage will automatically revoke any will you have made. If your will was made prior to your marriage, then it is the same as if you had no will at all and your spouse will inherit all of your estate, possibly contrary to your intentions.

Most people hold the mistaken belief that your will is invalid once you are divorced. This is not the case. If you are separated your will is still valid. Once you are formally divorced your will is not automatically revoked, however if you have left your spouse as the executor of your will or left them any gifts, these will automatically be revoked.

Ensuring the right people look after your minor children should both parents die

By making a will you, as the parents, are best suited to decide who should look after your children and manage their inheritance whilst they are minors. If you die without a will, a Court may need to appoint this person for you.

Vulnerable family members

If one of your children or even your spouse suffers from a disability or you have any concerns as to how they use the inheritance they receive, you may wish for someone else to manage their share of your estate. You could create a trust in your will ensuring that your wishes are complied with after you die. Without a will in this situation your vulnerable family members would receive their gift outright and may mismanage their finances, leaving them destitute.