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Dying without a Will – costs, conflict and chaos

October 24, 2016
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By Deborah Kliger, Lawyer, MST Lawyers

Too often, family members get caught up in costly estate administration disputes and litigation that could have been avoided had the deceased made a current Will.

Dying without a Will means your estate will be divided in accordance with a rigid statutory formula, without any regard for your wishes. As a result:

  • Your spouse may be forced to sell the family home in order to pay a share to your children;
  • There is a risk your assets would be distributed to relatives you do not wish to benefit.

Without a Will, a beneficiary will need to make an application for a grant as an administrator to manage your estate. This process is expensive, causes delays in estate administration and often sparks conflict.

If there is a dispute regarding the administrator, a trustee company may be appointed to manage the estate. Trustee companies can charge commissions of up to 6.6% of all income received by the estate and up to 5.5% of the total value of the estate.

Changes to your marital status affect the validity of your Will

  • If you made a Will prior to marriage, that Will becomes invalid once you get married.
  • Upon divorce, any clauses in your Will that make gift(s) to, or appoint your former spouse as executor would become invalid.
  • If you are separated, but not yet divorced, and you die without preparing or updating your Will, your former spouse or partner would be entitled to:
    •       Receive any gifts or act as executor under your existing Will; or
    •       Receive a share (up to 100%) of your estate if you die without a Will.

The importance of having a professionally drafted and up to date Will  

Having an up to date Will allows you to clearly set out your intentions as to who will:

  • Act as your executor and make important financial decisions regarding your estate;
  • Receive benefits under your estate (which may include a charity); and
  • Act as guardian of your minor children should your spouse die before you.

It is vital to seek expert legal advice in relation to your Will

Your assets may be vulnerable to claims by disappointed beneficiaries or even their estranged spouses and creditors.

Our specialist Wills & Estates team can assist you in tailoring a Will to your personal circumstances including:

  •  Advising on potential estate claims and how to minimise the risk of a claim;
  • Preparing Testamentary Trust Wills as appropriate to minimise tax payable on the distribution of your estate or seek to protect estate assets; and
  • Reviewing and advising in relation to assets not covered by your Will including superannuation, trusts and private companies.

If you have any questions in relation to your Will or any Estate Planning matter, contact our Wills & Estates team by email wills-estates@mst.com.au or by telephone +61 3 8540 0200. 



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