My parents think they don't need a will?

[27Bumblebees]

My df is 79 and dm is 80, and while they're still doing OK mentally, my dm has a bunch of health issues, has had cancer several times, pneumonia often, and is currently dealing with recurring vestibular migraines. Df is really fit for his age, and does some risky but worthwhile activities like regular sailing (racing) and skiing.

My df told me today that as long as both of them are living, they don't need a will because the surviving person will know what the person who passes would have wanted. I'm a bit nervous about this, as it seems like they're deferring decisions (or at least writing them down for anyone), and when one of them dies my db and I will have to rely heavily on our grieving surviving parent to answer all the questions about their affairs.

Just to be clear, the estate would remain with the surviving parent so there's no issue with money grabbing or anything of the sort. I asked him if he knew what my dm wanted to do with her sentimental pieces of jewellery, and he didn't know, and I asked him about his uncle's war medals, and he hadn't even considered them. Df said to me today he doesn't care a jot what happens to him after he's dead. So it feels like he's leaving a lot of the decisions up to us to sort out, which I guess I'm a bit surprised by.

My db and I get along and I trust if there wasn't a will we'd split everything evenly. But there's no appointed executor, and I'm not sure where we'd start. My dm has one surviving brother, my df no siblings left. I'm married with 3 kids and my db has 2 kids with his ex (teenagers, he's got primary custody after acrimonious divorce and family violence towards their kids by his ex wife, which she was prosecuted for). He now has a fiancee who brings with her a son. I'm not sure if any of that is relevant but thought I'd give some context.

Am I concerned over nothing? Or do you think it would be helpful for my parents to make a will while they're in a good state of mind, so we know what their wishes are? What are the risks and should I be suggesting anything to them at this stage? I don't have much sway over what they do generally, they're completely independent and I don't intend to have any control over their affairs.

No, in England assets over £322k don't automatically go to the spouse.
Check gov.uk:
www.gov.uk/inherits-someone-dies-without-will

here's an extract

What if they both die at the same time?

It could get very messy, depending on the family dynamics.

They need a will regardless of country.

I once did a study asking people about their end of life wishes and the answer 'I trust my daughter will know what I want' was very common. When I pushed it invariably turned out they had never told their daughter what they wanted and actually had some very specific wishes.

From family experience my GM died and before death had promised various people items of jewellery, ornaments etc. Without a will what happened was the first person on scene snaffled the lot.

Thanks. Bet a lot of people don’t realise that!

Which state @27Bumblebees as depending on that it will either all go to the spouse or some May go to the children
either way a will would help a lot

Neither of my parents had wills - ultimately it cost £7.5k in lawyers fees to sort out the mess they left after their deaths

I'm not an expert on this but as you are in Australia you will come under the Aus intestacy rules and these vary by state.With an estate of c AUS$1.5m I don't believe that all of the estate will pass to the surviving spouse by default.The amount that does varies from state to state but I think that the maximum is about 500k - so a third of the estate. The rest gets split between the survivor and the DC. The minimum is I think a lot less. So DF needs to give his head a bit of a wobble as if he were to die first (and just because he's fit and active doesn't mean he might not) he might not leave your DM as well provided for financially as she needs to be as the chances are her care needs are only going to escalate.

I'm not sure if the rules of the state of residence would trump the rules where an asset is situated - so eg if they live in NSW but own a second property in Queensland if the second property passes under the Queensland rules or the NSW rules.

Its a complicated situation made more so due to the federal nature of the Australian tax rules and you and your DB really need to get your DF to accept that he does need a will.

Thanks i think the nsw laws are that everything goes to the surviving spouse ($3mil+) but its not really the inheritance that I'm worried about. We have a very boring family set up, no extra children of my parents outside of their marriage, db and I get on well etc.

It was more looking to validate my feeling that it was selfish of them to defer all the work they could do now to us once they've died, while they've got time on their hands and no one is (yet) grieving! I also worry that they haven't actually communicated what they want to happen to them ("your mother knows"). And when pressed, I said I didn't even know if he wanted to be buried or cremated. He said he didn't care, whatever is cheaper, he'll be dead anyway, so probably cremated. But that's a preference, which I now know, and having these awkward, blood from stone, slightly exasperated conversations cannot be the only way to find out those preferences!

Df won't be swayed by the "what about your wishes" bc he's black and white about the fact he'll be dead so he doesn't care. So maybe I'll look into the cost implications for us /dm if he/she dies intestate.

I did ask about what happens if they die together, and he looked at me like I was crazy. His own parents died within 5 weeks of each other, the first one suddenly, the second one expected, and we were very grateful at the time that my grandparents had made a will and had been clear over the years about what it contained. Its like he's forgotten all of that.

The fact that he hadn't considered the impact on his kids is pretty consistent with his thinking more generally. Annoying, but not surprising.

Re your brother: "He now has a fiancee who brings with her a son"

Reading your OP I think your brother and his partner should give careful thought to their wills.

I don't know about Australia but in England step children don't automatically inherit when there is no will.

After marriage (in England) if your brother died without a will his partner would inherit everything (up to the threshold as previously discussed) then she could die without a will and everything would go to her child - equally she could make a will leaving everything only to her child. She could also remarry and leave everything to her new partner. The same is also true in reverse of course if your brother's partner died.

They should consider how to protect their own children's inheritance in the event of their death and whether they want to leave anything to their stepchild also.

In England marriage revokes a will unless they follow rules of making it in contemplation of marriage so would need to check with a solicitor re this.

Despite not having a will at least your parents affairs are relatively straightforward wanting to leave estate to each other and their joint children equally.

It makes things a lot more complicated for the survivors if there isn't a will. It's not easy to have to go contacting banks, insurance, pension companies etc after a death because you're grieving and a will does make it more straightforward.

He really needs to think about different scenarios: what if he dies first? What if they both die at the same time or close together (see the other thread about widows). What if one or the other of them becomes incapacitated by a stroke or dementia and can't communicate what they want? That situation can go on for years.

If one of them dies how will bills be paid in the initial few months? Pension ends on death and bank accounts held individually are frozen on death, and it can take time to get a spouse's pension set up. In the meantime there are still all the usual household bills needing to be paid, from an account that is now frozen and has no more money coming into it. It'll depend on rules around account holding in Australia but a joint account does mean the surviving spouse would still have access to that money.

Power of Attorney, or whatever the equivalent is in Australia, is really important too. If the person who has the bank accounts suddenly becomes incapacitated then what happens then?!

I can kind of see their point of view about not having a will if everything is straightforward and all their assets are to be liquidated and split 50/50 with you and your brother. Having the will in place though does make things more straightforward.

I have dealt recently with executing a will for a parent and when you are dealing with banks, insurance companies, pension funds and so on they will all ask for the death certificate and a copy of the will naming executors. This is just to keep things legal for them and to make sure they're not paying out cash to people who aren't entitled to receive it. With no will, you or your brother would have to go through some sort of legal process to be give then legal right to manage the estate - which takes time, and costs money. That alone would perhaps give your parents the incentive to make a simple will, to ease things legally.

What a will generally doesn't give though is a list of assets like accounts or possessions. When dad died my sibling and I spent days going through all the paperwork trying to build a picture of what accounts he had in his sole name, which ones were held jointly with mum and which she could continue using, looking for account numbers. Not an easy task as some of the accounts for things like life assurance he'd been paying (£10 a year) since the 1970s and the financial institution had changed names several times through mergers so there's a lot of googling and emailing involved. It would have been very helpful to have a comprehensive list. Even as far as things like who's name is on the phone bill or the supermarket loyalty card.

Your parents' estate sounds fairly simple - you & your DB would inherit equally.

But it sounds as though your brother needs a very watertight will to protect his children - Australian law recognises de facto marriage and your DB's girlfriend's children could inherit if he were to die intestate.

This is because I'm very cynical about in-laws - one of my best friends was a probate lawyer in Sydney, and once said to me that it's not the "blood" family but the in-laws who can get greedy about their spouse's family's estate.

Just managed to get DH to finally work towards signing our will.
The only way to sort it was by keeping distractions to the minimum. So nothing about jewellery, medals, cars just stuck to the 'estate' as a whole and who to. And refused to get distracted by 'what happens if' just stuck to one dead, then the other, didn't go mentioning if entire branches were wiped out.
I figured something was an awful lot better than nothing.

I can confirm applying for deputyship is a long and costly process. It took a year and £3k in legal fees to get in place for DF. He then died two weeks after it was approved.

DM was then understandably keen to get an LPA in place for herself. I was able to do this for her online myself, so only cost the filing fee ( less than £100 as I remember) and only took a few weeks.

What is your parents' plan if they were both killed in a car crash ? Or one was left behind unable to advocate for themselves. You can't just assume that one person dies, the other is left behind all neatly.

you, or they, need to seek out a solicitor in Australia that deals with wills and probate. I suspect the main issue is confronting their own mortality in an effect I like to call the Ostrich Syndrome. I think the Ozzie legal system is roughly along the lines as England and Wales ( uk police officers can transfer their service easily as most criminal legislation is the same) so dying intestate is probably a similar headache to here. Deffo not advisable.

Ask them if they want to give money in form of tax to their government?

Whatever country they are in surely this is more likely to be the case with no wills in place.

My Dad died without leaving a will. It was awful and I wouldn't wish it on anyone. Things that should have been straightforward weren't e.g. the leasehold hadn't been converted to freehold properly and I had to get the whole process started again.
His death was very sudden, unexpected and quite frankly traumatic, coupled with the fact that I already had a lot going on in my life at the time.

I get that thinking about a will can be uncomfortable, but it doesn't have to go into all the detail of who inherits the family silverware and what music he wants. Ask him to get the big issues written up and witnessed. It will save so much stress and heartache for you.

Shame op is in Australia otherwise I’d be tenpted to mention what might happen when Labour get into power

As the child of somebody who died intestate I can confirm that it made our lives incredibly more complicated, and as it happened, the surviving spouse wasn't very well equipped to handle it, emotionally or administratively. A lot of the stress passed to me. I made my own will immediately.
Making a will takes courage, but is also a gesture of support for loved ones, and a way of making their lives a little easier. I hope your parents come to see this.

Please point out to them that if there is no will, there are official rules as to how assets are divided up.
If they want to make sure that their wishes will be followed, they MUST make wills!