Nov 11, 2021

What happens when there is no will?

Sometimes the will includes details about the funeral, so ideally the document is located as soon as possible after death.

However, what happens when loved ones aren’t able to locate the will?

Rosemary Carreras, Consulting Principal with Keypoint Law, says it’s not uncommon for families to discover upon their loved one’s death there is no will, or they are not able to locate one.

In these circumstances, families are left with a problem: how do they divide the deceased’s estate?

Carreras says sometimes when the will can’t be located “it’s a right old mess”.

Top will storage spots

The best places to look for a will are in a file along with other important personal documents, in a safe (with access to the code too, ideally), in a bank vault, or with the deceased’s solicitor.

But from time to time, a will can’t be located. And quite often, a person dies without ever having made a will.

Having no will or being unable to find the will often leads to “resentment and frustration” for families, says Carreras. 

It causes a lot of organisation and expense sorting the matter out, and it often means the estate is not distributed according to how the family believes the deceased, or they themselves, would have wished.

The inheritance “pecking order”

So, how is the estate distributed in the absence of a will?

In New South Wales, in a traditional family, the pecking order and distribution amongst relatives is as follows:

  • Spouse/de facto;
  • Children, distributed to each child equally – if a child has died leaving children, their children are equally entitled to their deceased parent’s share;
  • Parents equally or the survivor of them;
  • Brothers and sisters equally or their children if they have died;
  • Grandparents equally or the survivor of them;
  • Aunts and uncles on both sides of the family – their children step in if the aunt or uncle of the deceased has died;
  • The state of NSW.

Distribution is more “straightforward” in nuclear families, Carreras said. 

“It can be very complicated in a blended family or where a person dies with multiple spouses. Yes, it happens,” Carreras said. 

“For example, when someone is separated but not divorced and has a new de facto.”

It’s also “tricky” when the partner who survives is not the parent of the deceased’s children. In these circumstances, there’s a formula in the legislation which prescribes “who gets what,” Carreras said.

A spouse who is not the parent of the children receives a statutory legacy of approximately $350,000, all the personal belongings, and half of the residue. The remaining half is distributed equally among the children.

Beneficiaries can be anywhere in the world

From time to time, Carreras has helped families in circumstances where there hasn’t been a will. One case stands out in her mind. 

An older gentleman of Italian heritage died without leaving a will. His good friend, who also happened to be his financial manager, approached Carreras for help. 

The gentleman had no family in Australia, and he was estranged from his brothers in Italy. The first thing Carreras had to do was identify all family members. 

“It was really difficult because we had to write to relatives in Italy and many of them had died,” Carreras explained. 

Through their searching, Carreras identified a niece who was entitled to part of the estate, even though the two had never met. The only problem was the woman lived in Sweden. 

Eventually Carreras was able to track her down on Facebook and she was finally located.

Carreras’s client put his hand up to be the attorney for the overseas parties, and eventually the estate was divided among the brothers and the niece.

For his troubles, Carreras’s client was also awarded a payment from the estate. 

“All of the beneficiaries agreed to pay him something for his pain and trouble,” Carreras said. 

The original thing

It’s also important that the family obtains the original will – a copy is not enough. Carreras recently had a case where only a copy could be found.

Where only a copy can be found and there is evidence that the original was last in the person’s possession, there is a presumption the person has revoked their will, Carreras said.

“The presumption is rebuttable though, which is what we were able to do in the case,” she said.

After writing to the deceased’s bank, to previous solicitors, to the Trustee and Guardian, and searching the deceased’s personal belongings, the family could still only find a copy.

However, after signing under oath an affidavit to say that two family members had had conversations with the deceased to the effect that the last will was prepared in 2014, it hadn’t been updated, it was the final will, and there was a copy in the cupboard, the court was able to accept the copy.

“So we actually proved that the will still stood and we were able to get probate of a copy,” said Carreras.

However, the process was “not easy” and required supporting evidence.

Difficult conversations can avoid future heartache  

Carreras always tells her clients to store the original will in a secure place. 

“I encourage people to have these conversations, and to at least tell people where they will be able to find the will.”

Failing to leave a will or not making it easily accessible can leave a “mess” for the family to sort out at a time they would rather be grieving. 

When the deceased’s wishes aren’t known, “arguments and feelings of resentment” arise easily among loved ones who might feel they haven’t received the entitlement they were promised or expected. 

They may also be forced to accept that a person who was estranged or had no relationship with the deceased receives a share of the estate simply “because the law says so”.

Families may feel that a person who is “legally” entitled to a portion of the estate is not necessarily “morally” entitled to it, Carreras said.

Sorting out these matters can be slow, distressing and expensive.

However, “it happens a lot though, that people are really just disorganised,” said Carreras. 

Her final piece of advice: prepare the will, store it somewhere safe, and tell your loved ones where it is.

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