It’s never too early to think about organising your affairs and creating a will. You might have 50 years left on this earth or 10. Either way, you have to expect the unexpected because life is unpredictable, and the last thing you want is to leave a mess behind for your family. The purpose of estate planning is to ensure that your loved ones are taken care of as you want them to be taken care of. A Will can give you the peace of mind you need and it can help prevent a will estate dispute in the event of your passing. 

According to research, around 60% of Australians have made a Will. That leaves 40% of Australians without a plan in place should they die unexpectedly. Many Australians suggest they will organise a Will once they purchase a property or get married or have children. However, you can make a Will at any time, and it can be updated to reflect changes in your circumstances. You don’t need to wait for major life events to plan. So, what happens if a family member passes away without a Will? 


The legal term applied to deceased estates with no Will is intestacy. This simply means there are no formal arrangements in place to dispose of debts, assets, and property upon death. This means intestacy laws take precedence, and the process that follows may not reflect your wishes. 

The first people to take their cut of the deceased estate are the debtors. Though, this is true whether there is a Will in place or not. Debts must be paid before anything else can be distributed. This includes taxes, financial institution debt, legal expenses, administrative debt, and funeral expenses. It is only after this that the contents of the Will are dealt with by deceased estate lawyers. Without a Will in place, the order of inheritance is generally as follows: 

  • Spouse
  • Children (and grandchildren)
  • Parents
  • Siblings
  • Grandparents
  • Aunts and uncles
  • Cousins
  • The State


Estate litigation lawyers will distribute to the first eligible inheritor and distribute it evenly to everyone at that level. As such, it could go to a separated spouse if there is no Will in place to prevent such a thing from happening. Or to family members you no longer speak to. 

Who Has The Rights? 

If you don’t have a Will, most of your direct family is not entitled to the assets and will have no control over how they are distributed. Only the most direct family member will have this power. For example, a spouse will receive everything. In the event there is no spouse, it would be distributed to children. No children? It’s grandchildren, and if there are no grandchildren, then it shifts to the parents and so on. The court may consider another document or informal will if there is one. This is when contesting a Will is most likely to occur. 

Another option that is common is that if there is no outline of what the deceased wishes to happen to their assets, loved ones may be forced to sell them. The reason for this is certain beneficiaries who are challenging a Will may claim for a larger share than the event split. This could result in selling assets off to meet that extra share. 

Conflict & Confusion 

Even when a Will is left, there is often conflict, confusion, and chaos. It compounds grief for everyone involved, and it can be dragged out for years. Without a Will, though, it can be even more complex and a Will dispute can be a stressful time for family members, especially if there are multiple spouses and children from different relationships. It can cause bad blood between half-siblings, step-siblings, step-parents, and beyond. The situation may escalate to court. For example, children may dispute a second or third spouse receiving the full estate. It isn’t just a time-consuming process, it is also expensive. 

If your loved one died without a Will and you don’t think you got your fair share, then you should seek legal advice as soon as possible to discuss your options. Get in touch with the will and estate lawyers team at AJB Stevens today and we’d be happy to assist.