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Half of Aussie mortgagors have no will – but where does that leave your assets?

4 min read
29 Jul 2020

We all want to ensure our loved ones are cared for in the event that the unexpected occurs. Despite this, our new research reveals many of us don’t have a will – specifically, 48 per cent of mortgagors. Not having a will can lead to issues around who benefits from assets left behind and how any debt is settled, potentially causing a great deal of stress for family members.

Sitting down to write a will is something that all Aussies should plan for, but at what point in life do people start developing this important legal document? The research shows that mortgage holders with a will are most likely to organise theirs when they purchase a property,[1] with a quarter of 18-29-year-olds choosing to finalise their will in conjunction with buying their first home. This shows that entering the property market is a major milestone, which is understandable since the average Aussie mortgage sits at $384,700.[2]

What should you consider if you have no will?

Since laws around how assets are distributed differ slightly between the States, those who are seeking advice for their own circumstances should contact a professional to talk about handling their will. To help Aussies get a clearer idea of what could happen if they pass away without a will, below are some facts on how assets are distributed, who can benefit and who can become the guardian of children when there is no will involved.

4 facts based on commonly held beliefs around passing away without a will:

  1. Your family or partner could be taken to court if others want to lay claim on your assets. If a person dies without a will, the spouse is first in line to receive the entirety of the assets.[3] If there is no spouse available, the estate will go to the first eligible relative moving down the line of succession, with each category being exhausted before moving to the next. This follows an order outlined by the State – children, parents, siblings, grandparents, aunts and uncles, then cousins. If someone does want to take a family to court over how assets are distributed in this case, it is often very time-consuming and expensive and may not even be successful.[4]
  2. Your family has no say in the distribution of your assets. As stated in point one, if a person dies without a will, their spouse is entitled to the entirety of the assets.[5] If there is no spouse, however, assets will be inherited by the next available relative and distributed equally. It is only if there are no eligible relatives that assets are passed onto the State. From there, an application must be made by anyone wanting to make a claim.[6]
  3. Your partner or family might be forced to sell your assets. Sometimes an individual may make a claim for a larger portion of the deceased individual’s assets. If there is no will outlining the intentions of the deceased, their partner or family may have to sell assets to meet the share. Assets may also be liquidated to pay out debt if bankruptcy is declared when there are more liabilities than assets.[7] Our research found that 22 per cent of respondents incorrectly assumed that in this case, their partner or family members wouldn’t be forced to sell assets for other parties to claim a share.
  4. Someone you didn’t expect could become the guardian of your children when you die. If a parent has children under the age of 18 when they pass away, guardianship is automatically given to the surviving parent.[9] However, if there is no surviving parent or the other parent refuses the role, the court may select a guardian – who may or may not be an individual you had in mind. If the deceased individual sent a letter or text message mentioning the intentions of guardianship in the event of your death, the court might also consider these informal documents. [10]

Sources

[1] Comparethemarket.com.au conducted a survey of a nationally representative panel of 1,002 Australian mortgagors, April 2020.
[2] Australian Bureau of Statistics, 2018, https://www.abs.gov.au/ausstats/[email protected]/0e5fa1cc95cd093c4a2568110007852b/d672cf4ebe195f15ca256e910077d9c2!OpenDocument
[3] Legal Services Commission of South Australia, State Library of New South Wales, Victoria Legal Aid, Victorian Government, Western Australia Legal Aid, WA Government , Queensland Public Trustee
[4] State Library of NSW, https://legalanswers.sl.nsw.gov.au/rest-assured-legal-guide-wills-estates-planning-ahead-and-funerals/estates
[5] Legal Services Commission of South Australia, State Library of New South Wales, Victoria Legal Aid, Victorian Government, Western Australia Legal Aid, WA Government , Queensland Public Trustee
[6] State Library of NSW https://legalanswers.sl.nsw.gov.au/rest-assured-legal-guide-wills-estates-planning-ahead-and-funerals/if-there-no
[7] Legal Practitioners’ Liability Committee, https://lplc.com.au/practice-risk-guides/guide-beneficiaries/
[9] NSW Legislation Guardianship of Minors https://www.legislation.nsw.gov.au/#/view/act/1916/41/part3
[10] Bateman Battersby Lawyers, https://www.batemanbattersby.com.au/can-informal-wills-be-valid/
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