You have been meaning to do it for years. It surfaces when a friend dies suddenly, or when you are filling in the next-of-kin box on a form, and then it slides back down the list. Meanwhile you have quietly built something worth protecting: a house with real equity in it, a super balance that is finally starting to look like a retirement, perhaps an investment property or a share portfolio.
If you died this weekend without a will, none of that would vanish. But almost none of it would be shared out the way you would have chosen, and the people you love would spend months finding that out.
Dying without a will does not mean no plan. It means someone else's plan
Let's clear up the myth first: the government does not simply take your money. What happens is that you are deemed to have died "intestate", and a formula written into your state or territory's succession laws decides who gets what. That formula runs in a fixed order — spouse first, then children, then parents, then siblings, and outwards from there — and it applies no matter what you told anyone you wanted.
Someone also has to be appointed to sort it out. Instead of an executor you chose, a family member has to apply to the Supreme Court for letters of administration, which is essentially permission to deal with your estate. That takes longer than probate on a normal will, it costs more, and the bank accounts stay frozen while it happens. Funeral costs, the mortgage and the electricity bill do not pause politely in the meantime.
The formula was not written with your family in mind
Most people assume their husband or wife simply gets everything. Sometimes that is right. Often it is not.
In New South Wales, for example, where there are children who are not also the children of your surviving partner, the partner receives what the law calls a "statutory legacy" — a set dollar amount, plus your personal effects and a share of what is left — and the children take the rest. That amount is indexed every quarter under section 106 of the Succession Act 2006, and at the time of writing it sits a little above $615,000. Every state and territory has its own version, with different thresholds and different fractions. The one thing they have in common is that none of them knows anything about your family.
That is where it goes wrong for real households. Blended families are the classic case: the formula may split your estate between your partner and children from an earlier relationship in proportions that force the family home to be sold. Stepchildren you raised but never formally adopted usually receive nothing at all. A long-term de facto partner may have to prove the relationship existed before they can inherit from it. An estranged adult child you have not spoken to in fifteen years is treated exactly the same as the daughter who drives you to your appointments.
None of that is cruelty. It is just a formula doing what formulas do.
What a will does that the formula cannot
A will is not only a list of who gets what. It lets you:
- name your own executor, so someone you trust is in charge rather than whoever is willing to apply;
- appoint a guardian for children under 18 — for many parents this is the real reason to write one;
- make specific gifts, so the tools go to the son who uses them and your mother's ring goes to the granddaughter who wants it;
- leave money in a trust for a beneficiary who is young, unwell, or not good with money, rather than handing them a lump sum at 18;
- say what you want at your funeral, so nobody has to guess on the worst week of their life.
Your super is probably not covered by your will at all
This is the part that catches people who think they are organised. Superannuation does not automatically form part of your estate. As Moneysmart puts it plainly, your super fund decides where your death benefit goes within the rules of superannuation law, unless you have given the fund a valid binding death benefit nomination.
Two things follow. First, if your super is a large part of your wealth — and by your fifties it usually is — then a will on its own does not control most of your money. Second, binding nominations commonly lapse after three years. A nomination you signed when you joined the fund may quietly have expired, which puts the decision back with the trustee.
Checking it takes about ten minutes: log into your fund, find the beneficiary section, see whether a nomination exists, whether it is binding or non-binding, and when it expires. Do the same for any life insurance you hold inside super. Noel Whittaker has been making this point for decades, and it is still the single most common gap in otherwise sensible plans.
If you are behind, or you are not sure yours still works
Almost nobody is starting from a perfect position, and an out-of-date will can be as much trouble as no will.
Watch for the life events that break an old one. In most states marriage revokes a will unless it was made in contemplation of that marriage, and divorce cancels gifts to a former spouse. If you have separated but not divorced, your ex may still be the legal beneficiary. Also look at whether your named executor is still alive, willing and local, and whether the will still mentions a house you sold in 2011.
Cost is less of a barrier than most people think. A straightforward will through a solicitor is usually a few hundred dollars, and Moneysmart notes that public trustees offer free wills for pensioners, for people over 60, or where you appoint them as executor. Do-it-yourself kits exist and are better than nothing, but if you have a blended family, a business, a self-managed super fund (SMSF), a trust or property in more than one state, pay for advice. Those are the estates that end up in court.
Then do the unglamorous part: tell your executor where the will is kept, and keep a one-page list of your accounts, super funds, insurers and debts with it. An estate is far easier to administer when someone knows what exists.
None of this is about death, really. It is about the six months afterwards, and whether the people you leave behind spend them grieving or arguing with a court registry.
If you would like this explained properly and in one place, Wills, Death & Taxes Made Simple is Noel Whittaker's plain-English guide to wills, estate planning and the tax that can follow you out the door. Buy direct from the author for $22.95, and you will receive it in both PDF and EPUB formats to read on any device.
This article is general information only and doesn't take account of your personal circumstances. Figures are current at time of writing and change each financial year. Consider seeking advice before acting.