A 'Will' is a document setting out your wishes as to how
you would like your assets and belongings (called your
'estate') to be dealt with after you die.
In Australia, people have full freedom of 'testamentary
disposition'. This means that you can leave your estate to
whomever you choose. So while people commonly choose to leave their
assets to close family and friends, you don't necessarily have
to include these people in your Will. However, some people do have
a right to ask the court to give them more or part of your estate
if you have not provided for them 'adequately'.
If someone dies without a Will, their estate is distributed
according to the 'rules of intestacy'. The rules of
intestacy provide a specific hierarchy of people to receive your
assets and are applied strictly to every person, no matter what
their personal circumstances were. In many cases, the rules of
intestacy unfortunately do not give effect to a person's
For example, if a person is survived by a legal spouse
(including a husband or wife from whom they are separated but not
legally divorced) and has no children, the surviving spouse will
receive the entire estate.
If a person has no spouse and no children (for example, a young
adult), that person's parents are each entitled to half of the
estate, regardless of whether the parent(s) had any relationship
with the child or not.
The rules of intestacy also apply to any assets that are not
properly dealt with by your Will – in that case you have a
If the rules of intestacy do not deal with your estate how you
would wish, it is very important that you make a Will and have a
proper estate plan to deal with any assets that your Will cannot
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The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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If you are doing a Will, or you are the executor of a deceased estate, consider what taxes and duties could be payable.
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