Many people believe that if they are married and they die without a Will, all their property will automatically go to their surviving spouse. That is frequently NOT the case in Australia.
If you are married, all jointly-owned property will pass by right of survivorship to your spouse. Matrimonial property (essentially property acquired during the marriage) will also generally go to your spouse.
However, if you also have one or more children, state law will provide a formula which will direct the share of the separate property (property acquired before marriage or inherited during the marriage) which will go to each of them. This can be an unintended result if the estate is modest and your surviving spouse needs all the estate-assets to make ends meet.
IF you die intestate (without a Will), these are some things you cannot do:
- Leave any part of your estate to a friend.
- Provide for a disabled child or other disabled beneficiary so as not to impact the government assistance they might otherwise receive.
- Nominate a guardian for your minor children.
- Prevent a minor beneficiary from receiving all of his or her inheritance at age 18.
- Leave any gifts to charity.
- Disinherit someone who would normally be regarded as your heir.
- Specify who will receive your personal property such as collectables, jewellery, artwork, coins, etc.
- Provide a life estate so that someone can live in your home after your death.
- Leave any part of your estate to a step-child or foster child which has not been adopted.
- Provide for the continuing care & accommodation of a pet animal.
- Designate the ages and the terms under which your children or grandchildren will receive their inheritance.
Under modern laws, it may be possible for a person to have more than one “spouse” for the purposes of probate law. A “domestic partner”, or “defacto” may potentially be declared to be a “putative spouse” after you have died. The additional spouse might be able to validly challenge your estate AFTER you die, and acquire property rights in your deceased estate under intestacy laws which you don’t intend.
To avoid unintended results upon your death and properly provide for your loved ones, it is important to have a Will, as a component of an integrated estate plan. Call Genders & Partners today and know more about getting a Will in Adelaide. And do it now… before it is too late.