More than half of Australian adults don’t have a valid Will. If you’re one of them, the law has already written one for you. It’s just unlikely to say what you would have said.
Dying without a Will is called dying intestate. Two things follow. A fixed formula decides who gets what, and someone in your family has to go to the Supreme Court before they can deal with anything you owned.
A formula decides, not your family
Queensland’s intestacy rules set out a strict order of who receives what. They don’t take into account what you would have wanted, what you promised anyone, or who actually needs it.
Broadly, and depending on your circumstances when you die:
- A spouse and no children – your spouse generally receives the whole Estate.
- A spouse and children – your spouse receives your household chattels, a set cash sum, and a share of what’s left. Your children split the balance. Your spouse does not simply inherit everything.
- Children and no spouse – divided equally between your children.
- Neither – the Estate passes up and along a defined family tree. Parents, then siblings, then nieces and nephews, then grandparents, aunts, uncles and cousins.
- No eligible relatives at all – it goes to the Crown (aka the State Government).
Two things catch families out again and again.
The first is that your spouse and your children can end up owning the family home together, whether any of them wanted that or not. If the house is the main asset and the children are entitled to a share, quite often it has to be sold.
The second is that “spouse” is a legal category, not a personal one. A husband or wife you separated from but never divorced may well still count. A long-term de facto partner might have to prove the relationship existed. A newer partner may or may not be included. None of that is what people assume.
Letters of administration, and what they cost the people you leave behind
This is the practical cost of not having a Will, and it’s the part people underestimate.
Banks, super funds, share registries and the Titles Office won’t release anything to someone who can’t prove they’re entitled to deal with it. With a Will, your executor produces the Will. Without one, someone in your family has to apply to the Supreme Court of Queensland for a grant of letters of administration.
That’s a formal Court application. It means advertising the intended application, sworn affidavit evidence, a full statement of assets and liabilities, and Court filing fees. It commonly costs several thousand dollars and takes months. Someone you love has to organise all of it while they’re grieving.
It also means a wait before anyone can get at any money. The funeral, the mortgage, the bills and the school fees don’t pause while a Court application is prepared.
If I don’t have much, why bother?
It’s the most common reason people give us for not having a Will, and it’s the wrong way round.
If your Estate is $2 million, a few thousand dollars in administration costs is an irritation. If your Estate is $80,000, that same few thousand is a serious chunk of what your family actually receives. The smaller the Estate, the more damage the extra cost does.
A Will is one of the few pieces of legal work where doing it properly in advance genuinely is the cheaper option.
What a Will doesn’t cover
Worth knowing even if you’ve already got one. Your Will doesn’t control:
- Superannuation – paid according to your binding death benefit nomination, not your Will. Often the biggest asset you have, particularly with life insurance attached.
- Jointly owned property – passes automatically to the surviving joint tenant.
- Assets owned by a company or family trust – they’re not yours personally, so they’re not part of your Estate. What matters is control of the Trust, and that’s governed by the trust deed.
This is why a Will on its own is rarely the whole answer, and why an online template that produces only the Will can leave the most valuable things completely unaddressed.
What it costs to sort out
A new Will for a single person starts at $550, or $990 for a couple. Our complete package, which is a full review of your circumstances plus a Will, an Enduring Power of Attorney and a binding superannuation nomination, starts at $880 for one person and $1,320 for a couple. Individual documents start from $330.
Most straightforward Estate plans are done in two appointments. The full list is on our Wills and succession planning page.
If things are more complicated, say a blended family, a business, a self-managed super fund, or a family member with particular needs, there’s more to talk about, including testamentary discretionary trusts. Complex Estate planning usually starts from $3,000, and we’ll always give you a written estimate before we start drafting anything.
Come and talk to us
Your first appointment is free and it’s genuine advice, not a sales exercise. Book online whenever suits you, or call us on 07 2114 7131.
This article is general information only and doesn’t take your personal circumstances into account. It isn’t legal advice. Intestacy rules are state-based and differ outside Queensland, and the amounts and shares that apply can change. Please talk to a lawyer about your own situation.
