Estate planning can be a challenging topic, but it’s a crucial part of protecting your loved ones and ensuring your wishes are followed after your death.
In Australia, an unsigned will or the absence of a will entirely can lead to complicated legal issues, potentially leaving families uncertain about asset distribution and dealing with avoidable stress.
Let’s answer common questions about what happens when there’s no signed will, who inherits the estate, and how intestacy laws work in Australia.
What Happens If You Die Without a Signed Will in Australia?
An unsigned will does not hold legal power in Australia. For a will to be valid, it must be properly signed and witnessed according to Australian legal requirements. This means that if you pass away with an unsigned will or no will at all, the law treats you as having died “intestate.”
Dying intestate means that the court steps in to manage the distribution of your estate.
When someone dies intestate, Australian laws specify how their assets, including money, property, and belongings, are divided among their family members. This legal process is generally referred to as “intestate succession.” A lack of a signed will can lead to outcomes that may not reflect your wishes.
Without a valid will, you have no guarantee over how your assets are managed or who benefits from them.
Dying without a signed will can result in prolonged court procedures, potential disputes among family members, and sometimes, costly legal fees. A signed will allows individuals to appoint an executor to carry out their wishes, reducing confusion and ensuring that their assets are distributed as they intended.
Also Read: What Happens When Someone Dies Without a Will in QLD
Who Inherits Your Estate When There’s No Signed Will?
When there’s no signed will, intestacy laws step in to determine who inherits your estate. In Australia, these laws vary slightly across states and territories, but they generally follow similar guidelines. Intestate succession laws prioritise family members, with the closest relatives usually being the primary beneficiaries.
Spouse and Children: In most cases, the spouse or de facto partner of the deceased will inherit a portion of the estate, along with any children the deceased had. If there is both a spouse and children, the estate may be divided between them. The spouse may receive a larger share, with the remaining portion divided among the children.
No Spouse or Children: If the deceased has no spouse or children, other family members such as parents, siblings, nieces, and nephews are next in line to inherit. Each state and territory has specific rules about which relatives inherit in these cases, but generally, it moves down a family tree from closest to more distant relatives.
No Immediate Family Members: If no close relatives can be found, the estate may eventually pass to the government. This is known as “bona vacantia,” where the state claims the assets. Although rare, this can happen if no relatives are eligible under intestate succession laws.
Without a signed will, the government determines who inherits based on these laws, which may not align with your personal wishes. This can lead to unintended outcomes, especially for people who would like to leave part of their estate to friends, charities, or more distant relatives not considered under intestacy rules.
How Are Assets Distributed Under Intestacy Laws in Australia?
The distribution of assets under intestacy laws in Australia follows a structured process to ensure that the estate is divided as fairly as possible among surviving family members. Here’s a breakdown of how it typically works:
Identifying Eligible Family Members: When someone dies intestate, the court will first identify all potential family members who may inherit under intestacy laws. This starts with immediate family, such as the spouse and children, and moves to parents, siblings, and beyond if no closer family members are alive.
Division of Assets: If there is both a surviving spouse and children, the assets are split between them, with the spouse often receiving a designated share and the remainder split among the children. For example, in some states, the spouse may receive the family home or a “statutory legacy,” which is a fixed sum, along with a portion of the remaining estate.
Other Relatives: In the absence of a spouse and children, the estate is divided among other relatives, typically starting with parents and then moving to siblings and their descendants. Each state may have slight variations in how this is applied, but the core principle is to distribute assets among blood relatives.
Government Claim: If no eligible family members can be located, the estate is transferred to the government. However, the government rarely ends up claiming estates, as distant relatives are often located through genealogical research.
Understanding how assets are distributed under intestacy laws can highlight the importance of a signed will. Without it, the law steps in to allocate your estate, often without consideration for personal relationships, preferences, or charities you may have wanted to support.
Also Read: How Statutory Will Can Legally Change Your Will
Can an Unsigned Will Be Validated in Any Circumstances?
Generally, an unsigned will cannot be validated in Australia. For a will to be legally binding, it must meet strict formalities, including the signature of the testator (the person making the will) and two witnesses. The requirement for a signature is essential to confirm that the document reflects the testator’s intentions.
However, in some exceptional cases, the court may consider other documents as a “statement of wishes.” While this is not equivalent to a will, a statement of wishes can give the court insight into the person’s intentions, especially if there is strong evidence that the deceased intended for the unsigned document to serve as their will.
This may occur if the document shows clear instructions and was prepared very close to the time of death.
Each case is unique, and courts make decisions on a case-by-case basis. If you have an unsigned will, it’s essential to formalise it to ensure your wishes are legally recognised.
What Steps Should You Take to Avoid Dying Intestate?
Avoiding intestacy is simple when you take the right steps to create and sign a valid will. Here’s how to make sure your estate is managed according to your wishes:
Create a Will: Start by creating a will that clearly outlines how you want your assets distributed, who you wish to appoint as guardians for minor children, and any specific instructions you have for your estate.
Consult a Legal Professional: Working with an estate lawyer ensures that your will meets all legal requirements in Australia, reducing the chance of it being disputed or considered invalid.
Sign and Witness the Will: Make sure your will is signed by you and witnessed by two other adults who are not beneficiaries. Without this, your will may be deemed invalid.
Review and Update Regularly: Life changes such as marriage, divorce, or having children can impact your will. Regularly reviewing and updating your will keeps it aligned with your current wishes and circumstances.
Store the Will Safely: Store your signed will in a secure location and inform your executor or trusted individuals of its whereabouts. Some people choose to lodge their will with a lawyer or use a safe deposit box.
Taking these steps not only gives you peace of mind but also ensures that your loved ones will have a clear roadmap to follow in managing your estate.
Need Help with Your Estate Planning? Secure Your Legacy with Walker Pender
Planning your estate with a signed, valid will is one of the most important steps you can take to protect your legacy and provide peace of mind to your loved ones. By creating a legally binding document, you avoid the uncertainty and complications that arise with intestacy.
Don’t leave your family’s future up to chance—ensure your wishes are clear, legally recognised, and easy to follow.
At Walker Pender, our team of experienced estate lawyers can guide you in drafting a legally valid will tailored to your wishes. Contact us today to secure your legacy and make estate planning stress-free.
