Against your Will – what it means if you die intestate

Next month marks the third anniversary of the death of Prince and eight months since the death of Aretha Franklin.

One thing these two extraordinarily successful singers have in common is that they both died intestate (that is, without a Will in place).

For Prince’s estate, the investigation into his assets, the overall value of his estate and which of his family members will receive a share has taken over two years and is ongoing. For Franklin, her lawyer repeatedly urged her to make a Will, but to no avail. It will take years, not to mention a huge amount of expense, before either of these estates will be finalised.

In Australia, when a person dies intestate, the assets of the deceased will pass in accordance with the intestacy laws of their respective state or territory; and they differ from state to state.

Usually the estate will pass to either a person’s spouse or children, or a combination thereof, in accordance with a set formula, which may not have been that person’s intention. This is particularly so in blended families.

Besides the lack of certainty a person has in relation to how their estate will be distributed on death and who is is managing it, dying intestate generally creates additional complexities and hurt for surviving family members.

Naturally, having a valid Will in place will allow you to avoid this situation. However, as a Will only deals with assets that are legally and exclusively held in a person’s own name, more often than not, having a valid Will is only one of the essential components of an estate plan.

A thorough estate plan requires consideration and arrangements for superannuation, family trusts, companies, family loans, granny flats, and any other significant financial asset or legal rights that are in the control of the deceased, or that will be affected by their death.

All these matters should be reviewed with a lawyer and other trusted advisors. Generally, not having a Will and estate plan in place usually increases the costs and complications for family members.

Regardless of your wealth, circumstance or  situation, the complexities and complications that have arisen from the estates of Prince and Aretha Franklin serve as a timely reminder as to why everyone should have a valid and up-to-date Will and estate plan.

If you or your clients wish to discuss or review your estate plan, please contact our Private Clients team.

This article was written by Christine Huynh, Lawyer – Private Clients.