PLEASE NOTE: This article was published on the date listed below and may now contain information that has since been updated or changed. We have retained this article as it may still contain helpful comments. However, we advise you to make an appointment to see us for the most up to date information on this topic.

June 2003

Plan ahead or let the Government intervene

The Importance of having a current Will

The Property (Relationships) Act has made dramatic differences in widening the claimant category for estates, but the basic fact remains that without a Will the inheritance you leave your spouse, partner or children, may be the inheritance they never wanted.

The fact is that if you die without a Will (intestate) the Government, through legislation, intervenes. A Court will determine who will look after any independent children (minors) if a surviving parent is unavailable or unfit and any property will be distributed or held in trusts according to a statutory formula set out in the Administration Act 1969.

Examples of when a deceased with no will leaves …

1. A spouse (or defacto partner) and children:
Many are under the impression that the surviving spouse (or defacto partner) would take all of the deceased’s property, especially if the children are minors. This is not so. The spouse (or defacto partner) is entitled to personal chattels with some exceptions, and a prescribed or statutory amount of $121,500.00 plus interest from the residue of the estate. The remainder is then divided one third to the spouse (or defacto partner) and two-thirds to the children.

2. A spouse (or defacto partner), no children, but one or both parents:
Here again it is often thought that the spouse (or defacto partner) would take all of the deceased’s property. In fact, the spouse (or defacto partner) takes the personal chattels - again with some exceptions – and the prescribed statutory amount. Any remainder is divided two thirds to the spouse (or defacto partner) and one third to the parents or, if only one parent, to that parent.

3. A spouse (or defacto partner) only:
Generally the entire estate is taken by that survivor.

4. Children only: 
The estate is held on trust for the children.

5. One or both parents only:
The estate is held in trust in equal shares for the parents, but if there is only one parent, for that parent.

6. None of the above family members: 
In this situation the Government takes the estate. 
These examples are very general and are by no means exhaustive. There are qualifications and restrictions, particularly in relation to defacto partners. Creditors may also have rights. Unravelling an intestate estate can be extremely complicated. 
If you do not have a Will – make one! If you do have a Will, it may need updating either because of your changed circumstances or because the Property (Relationships) Act provisions may distort your intentions contained in your Will. Avoid unnecessary intrusion by the Government into your affairs after death. A comparatively small investment now can significantly reduce costs and hassle in the future.