Do I Need a Will If I Don’t Own a Home?

When people think about making a Will, they often assume it is something they only need once they own a home or have significant assets.

However, owning property is not a requirement for having a Will.

Even if you rent, have limited savings or do not consider yourself to have substantial assets, a valid Will can still play an important role in protecting your loved ones and making your wishes clear.

What happens if I don’t have a Will?

If you die without a valid Will, you are considered to have died “intestate”. This generally means your estate will be distributed according to the intestacy laws applying in your state or territory, not necessarily according to your personal wishes.

The person who administers your estate may also need to apply for letters of administration. This can create additional time, expense and uncertainty for your family during an already difficult period.

Without a Will, you also lose the opportunity to nominate:

• Who should administer your estate;
• Who should receive particular belongings or assets;
• Who you would like to care for your minor children;
• How an inheritance for a young or vulnerable beneficiary should be managed; and
• Your preferences concerning your funeral, burial or cremation.

I don’t own a home, what would go in my Will?

You may have more assets than you realise.

Your estate could include:

• Money held in bank accounts;
• Your car or other vehicles;
• Jewellery, furniture and personal belongings;
• Investments or shares;
• Business interests;
• Intellectual property;
• Digital assets, including cryptocurrency;
• Insurance proceeds payable to your estate;
• Money owed to you;
• An expected inheritance; and
• Any property or other assets you acquire before your death.

A Will can also deal with sentimental items that may have little financial value but considerable emotional importance, such as photographs, family heirlooms, artwork or jewellery.

Your circumstances may also change over time. You may not own a home today, but your financial and personal circumstances could look very different in five, ten or twenty years.

Who will look after my children?

If you have children under the age of 18, one of the most important reasons to make a Will is to nominate a testamentary guardian.

A testamentary guardian is the person you would like to care for your children and assist with important decisions concerning matters such as their:

• Living arrangements;
• Education;
• Health and lifestyle;
• Religious or cultural upbringing; and
• General welfare.

The appointment will be particularly relevant if both parents die while the children are minors. While the Court retains the power to make parenting orders based on the children’s best interests, recording your wishes in a properly prepared Will provides important evidence of the person you trusted to care for them.

Your Will can also establish arrangements for managing your children’s inheritance until they reach a nominated age. This may include giving your executor and trustee powers to apply money towards their education, accommodation, health and general maintenance.

It is important to speak with your proposed guardian before appointing them and to consider appointing a substitute guardian if your first choice is unable or unwilling to act.

What powers will my executor need?

A Will allows you to appoint an executor to administer your estate after your death. You can also appoint a substitute executor in case your first choice cannot act.

Your executor may be responsible for:

• Arranging your funeral;
• Locating and protecting your assets;
• Applying for probate, where required;
• Paying your debts and estate expenses;
• Dealing with banks, insurers and government bodies;
• Selling or transferring assets;
• Managing investments or businesses while the estate is being administered;
• Attending to taxation matters;
• Managing funds held on trust for children or other beneficiaries; and
• Distributing your estate in accordance with your Will.

A properly drafted Will can give your executor and trustee appropriate powers to perform these tasks efficiently. This may include powers to sell, transfer, insure, invest, manage or retain assets and to use funds for the benefit of minor beneficiaries.

Without carefully drafted administrative powers, dealing with a complex asset, business interest, digital account or long-term trust may become more difficult.

Can I say whether I want to be buried or cremated?

Your Will can record your funeral preferences, including whether you would prefer to be buried or cremated and whether you have particular wishes for your funeral or memorial service.

In NSW, most funeral wishes are not legally binding, although an executor should generally try to follow them where they are reasonable and practical. A written direction that your body is not to be cremated is treated differently and is legally binding.

Because funeral arrangements may need to be made before your Will is located or read, it is also a good idea to discuss your wishes with your executor and close family members.

What else can my Will address?

Depending on your circumstances, your Will can also be used to:

• Name the people, organisations or charities you wish to benefit;
• Leave particular assets or sentimental belongings to specific people;
• Decide who receives the remainder of your estate;
• Nominate substitute beneficiaries if someone dies before you;
• Create trusts for children, vulnerable beneficiaries or beneficiaries with a disability;
• Specify the age at which a young beneficiary will receive control of their inheritance;
• Provide for a spouse, partner, children, stepchildren or other dependants;
• Deal with shares or interests in a business;
• Give your executor powers to manage digital assets and online accounts;
• Make provision for the ongoing care of your pets; and
• Record wishes concerning the disposal of personal, cultural or sensitive material.

Your Will should be tailored to your individual circumstances. A clause that is appropriate for one person may not provide adequate protection for another.

What about my superannuation?

Superannuation is an important part of estate planning, but it does not automatically form part of your estate in the same way as other assets.

Depending on your fund and circumstances, you may need to consider:

• Who you have nominated to receive your superannuation death benefits;
• Whether your nomination is binding and valid;
• When your nomination expires;
• Whether your legal personal representative should be nominated; and
• The potential tax consequences for the proposed recipient.

Life insurance may also be paid directly to a nominated beneficiary or to your estate, depending on the policy.

This is why estate planning should be considered as a whole rather than simply asking whether you own a home.

What if I’m young and don’t have many assets?

There is a common misconception that Wills are only necessary for older people or those with substantial wealth.

The reality is that life circumstances can change unexpectedly.

If you have children, a partner, savings, personal belongings, superannuation, insurance or simply want a say in who administers your affairs, it is worth considering a Will.

Having a Will can reduce uncertainty, identify the person you trust to administer your estate and help make a difficult process clearer for the people you leave behind.

What if I marry, separate, have children or buy a home later?

Your Will should reflect your current circumstances and be reviewed when significant life events occur.

These may include:

• Marriage;
• Separation or divorce;
• Entering or ending a de facto relationship;
• The birth or adoption of a child;
• Buying or selling property;
• Starting or selling a business;
• The death of an executor, guardian or beneficiary;
• A substantial change in your financial position; or
• A change in your relationships or wishes.

In NSW, marriage can revoke an existing Will unless it was made in contemplation of that marriage. Divorce can also affect gifts and appointments involving a former spouse. Separation alone does not necessarily have the same effect.

You do not need to wait until you own a home before making a Will. Having one in place means it can be reviewed and updated as your life changes.

So, do I need a Will if I don’t own a home?

Not owning a home does not mean you do not need a Will.

A Will is about more than deciding who receives real estate. It allows you to choose who administers your estate, nominate guardians for your minor children, provide appropriate powers to your executor, protect younger beneficiaries, record your funeral preferences and clearly identify who should receive the assets and belongings you leave behind.

If you are unsure whether you need a Will, or whether your existing Will still reflects your circumstances, legal advice can help you understand your options.

At Lawgix, we can assist with preparing and reviewing Wills and provide advice about your broader estate-planning needs.

Contact Lawgix to discuss your circumstances and ensure your wishes are properly documented.