If you die without a will, an application will most likely need to be made to the Supreme Court of Victoria for a grant of ‘Letters of Administration’*. In most instances the grant is made to your closest surviving next-of-kin.
The person who receives the grant is then responsible for distribution of your assets, regardless of whether or not you would want this person administering your estate. Unfortunately, during this process there is the potential for costly disputes to arise between family members about who should be appointed as the administrator of your estate.
Your assets are then required to be distributed in an order determined by the law. This same order applies to anyone who dies without a valid Will, regardless of their circumstances or their wishes. The order preferences family members and is as follows:
- If you leave a spouse and no children then your spouse will receive your whole estate.
- If you leave a spouse and children then your spouse will receive the first $100,000 and one-third of the residue, while your children receive the remaining two-thirds equally.
- If you do not have a spouse or children then your mother and father receive the whole of your estate.
- If you do not have either a mother or father, then your siblings receive the whole of your estate equally.
This order cannot be changed. And it sometimes causes problems. For instance, a spouse may be forced to sell the family home in order to pay a share to a deceased’s children.
Also, if you are not married at the time of your death but are in a ‘de facto’ or domestic relationship, you need to have either lived in a domestic relationship for two years with that person and/or have a child with that person before your partner will benefit from your estate. If you do not leave a Will, your partner may have to go through the painful experience of having to prove that your relationship existed.
Another point to consider is that you are able to state a preference in your Will for who is chosen as guardian for your children.
Save your loved ones from more grief and pain following your death and prepare a valid Will.