Settlement Guide

Young or old, wealthy or not, why everyone should have a will

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Many Australians underestimate the importance of having a will, believing they are not wealthy or old enough to need it. But experts say you are never too young to have one.

Research shows only older people, and those with significant assets most commonly make a will in Australia.

A large-scale study in 2017 showed that almost half of those surveyed did not have a will in place.


Key Points

  • Research shows that one in two Australians do not have a will in place.
  • Experts say cultural reasons, misconceptions and even superstitions behind people avoiding a will.
  • Assets are distributed according to the default state legislation in case of death without a will. 

The study was led by Adam Steen, Professor of Practice at Deakin University. He says the reasons behind this unwillingness to prepare will include misconceptions and even superstitions.

"There’s a large proportion of people who don't think that they need a will. And there's also a significant proportion of people who think if they make a will, they're going to die. Some people think ‘we don't have enough money’, ‘we're not old enough’," he told SBS Radio.

When someone dies without a will, it is called intestacy, and the distribution of assets then takes place according to the state or territory laws. Solicitor Dean Kalymnios says having a will in place can save a family the hassles of going through this situation.  

model house
The will can ensure your assets are distributed as per your wishes in the eventuality of death.
Getty Images/seksan Mongkhonkhamsao

"People think that wills are something that concerns people nearing the end of their life. And not to be morbid about it, you never know when that's going to be. So, it's always a good idea to plan ahead," he says.

He says the distribution of assets by the intestacy rules might not reflect how a person would have wanted to prioritise the family members for bequeathing the assets.  

"There might be something that you really want to bequeath to a grandchild, a family heirloom or something of significance or something shared between both of you, and a will is the best way to do that," says Mr Kalymnios.

It’s also important to think of your digital assets because everything is online now. There used to be photo albums, now everything is in digital photos, email lists and all that kind of stuff in their social media. And people are buying lots of bitcoins and things like that.

-Adam Steen, Prof of Practice at Deakin University

Planning for loved ones goes beyond possessions

Mr Kalymnios recommends getting legal advice to prepare a will to avoid mistakes that could render the document invalid.

Couple discussing will
Couple discussing will
Getty Images/skynesher

You can get your will written by a solicitor or the Public Trustee, a government office operating in each state and territory.

Michael Spiegel is the Executive General Manager of the Trustee Services division at the Public Trustee for Victoria.

He points out that having a will is particularly important for parents, as in the eventuality of death without a will, guardianship of minor children is decided by the law.

Children could be sent to foster care if no appropriate relatives are available to care for them. There may be situations when children of migrants in this situation could be sent to relatives overseas if there's no family network in Australia to care for them. 

Child on shoulders
If the guardianship of a minor is not taken care of through a will, it will be decided upon by state laws.
Getty Images/Paul Bradbury

Safeguard against ambiguity

Dean Kalymnios says a will can help resolve uncertainty or cultural misconceptions.

In general situations, it just makes life easier and clearer, because people know what the deceased wanted.

“In some migrant communities, the conception of the property itself differs from the Anglo-Celtic view. Family property is considered just that, something that everyone gets to share. Whereas obviously, from the Australian legal viewpoint, the idea of property how it’s evolved is it's yours, you have the right to do with it what you will,” says Mr Kalymnios.

Whether you get legal help to write a will or use a will kit, it's important to keep some things in mind for a will to be valid.

You can’t just exclude your children even if you were estranged from them or if you have maybe two families; it’s much more intricate than that. There are reasons, and there are levels of what you have to or should give to them, the courts will sometimes decide that. 

-Michael Spiegel, Executive General Manager at Victoria State Trustees 

couple discussing will
Solicitors and the Public Trustee in your state are the two options of professional assistance for preparing will.
Getty Images/skynesher

Recounting his experience at the Victorian State Trustees, Michael Spiegel says family conflict is common when someone dies without a will.

He advises people to ensure their wishes are made known to their loved ones.

"Make sure you have everything in place that you want. And the best situation is not only to have it in a place, but to have the conversations so the family knows what's going to happen, there are no surprises," he says.

We don’t like to talk about our own death. But it is one thing that is sure in life that we are all going to die, and the more we think about the implications of that and the impact it’s going to have on the people you love, the better off you will be.

-Michael Spiegel, Executive General Manager at Victoria State Trustees 

If you use an online will kit, you can still get it checked by a solicitor or Public Trustee. Find the Public Trustee office website for your state or territory.

This story is also available in other languages.