“My partner refuses to get a will. What is the standard procedure when someone dies without a will?”
QUESTION:
My partner refuses to get a will. What is the standard procedure when someone dies without a will?
We are not married but we live together and we have two children. Our parents are still alive. So are our siblings.
He has life insurance so he thinks we have no reason to worry about the house and the remaining mortgage.
ANSWER:
The Panel cannot stress enough the importance of making a will. It is the best way of ensuring that a person’s wishes are carried out upon death.
Your letter does not specify whether your house is in joint names with your partner. This issue will have a large bearing on your position should your partner die before you.
If there is no will an intestate estate results and the rules of intestacy apply.
In your case you would receive the first $100,000 and one-half of the balance of the estate, together with the personal belongings of the deceased. The remainder of the estate would go to the children. It is assumed that neither party has other children.
In cases where the entire estate is worth less than $100,000, the whole estate goes to the surviving partner.
As you are not married, it would be necessary to seek from the court a declaration under the Family Relationships Act that you were a domestic partner of the deceased and therefore entitled to the above-mentioned benefits. Such a declaration is not necessary if a will is made.
It is likely that you would also have to apply for Letters of Administration from the Probate Registry of the Supreme Court. There will be a cost for this.
It is strongly recommended that you and your partner seek legal advice. If your partner will not go with you it is still advisable that you do so.
Some people are averse to seeking such advice on the ground of cost. It is possible to shop around and seek an indication of likely costs before you make an appointment. Alternatively you could engage the services of the Public Trustee. There is no cost for this at the time. Fees are recouped from the estate later.
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Relationships Australia (SA) appoints panels of general practitioners, medical specialists, lawyers, therapeutic and financial counsellors to discuss each letter before the appropriate professional answers it.
