There’s a pattern that plays out across suburban Victoria with depressing regularity. A couple buys their first home in Pakenham or Cranbourne or Officer. They go through the conveyancing process, sign the contracts, get the keys, move in. Six months later they have a baby. They update their insurance. They set up a savings account for the kid. They even write a list of who gets the good furniture if something happens.
But they don’t do a Will. They know they should. They’ve talked about it. They’ve even Googled “wills lawyers” at midnight on a Tuesday. And then life gets busy, the baby starts teething, and the Will goes on the same pile as the gym membership and the tax return.
Here’s why that’s a bigger problem than most young families realise.
Without a Will, the State Decides Everything
If you die without a valid Will in Victoria, your estate is distributed according to the Administration and Probate Act 1958. The rules are rigid. If you’re married with children, your spouse gets a statutory legacy (currently $451,909 as of 2023 indexing) plus a share of the remainder. The rest goes to the children. Sounds reasonable in theory.
In practice, it can be a disaster. If your main asset is the family home and its value falls within that statutory legacy threshold, your spouse keeps it. If the home is worth significantly more, your children become co-owners of the property — which means your surviving partner might need to sell the house to distribute the kids’ share. If you’re in a de facto relationship rather than a marriage, the rules are different again and significantly less generous in some scenarios.
A lawyer for wills can draft a document that takes about an hour of your time and costs a few hundred dollars. Without it, your family could spend months dealing with probate court, legal fees, and potential disputes that dwarf the cost of writing the Will in the first place.
The Guardianship Question Nobody Wants to Think About
If both parents die without naming a guardian in their Will, the court decides who raises your children. That’s not a hypothetical meant to scare you — it’s the actual legal process. A Family Court judge, who has never met your kids, will make a decision based on applications from family members or even state intervention.
Naming a guardian in your Will doesn’t guarantee the court will follow your wishes, but it carries enormous weight. It’s also the place where you can explain your reasoning — why you chose your sister over your mother-in-law, for instance. That context matters.
While you’re at it, talk to your chosen guardian. Make sure they’re willing. Make sure they understand what it means. And talk to your estate planning attorney about setting up a testamentary trust within the Will — this allows assets to be held in trust for your children until they reach an age where they can manage the money themselves, rather than handing a lump sum to an eighteen-year-old.
Power of Attorney: the Other Document You Need and Don’t Have
A Will only takes effect after you die. A Power of Attorney takes effect while you’re still alive but unable to make decisions — because of an accident, a stroke, dementia, or any other incapacitating event. Without one, your family has to apply to VCAT for a guardianship or administration order, which takes weeks and costs thousands.
In Victoria, you need two types. A General Power of Attorney covers financial decisions. A Medical Treatment Decision Maker covers healthcare decisions. Power of attorney lawyers typically prepare these alongside your Will as a package — it’s cheaper to do them together, and the information your solicitor needs overlaps significantly.
Your Conveyancer and Your Will Lawyer Should Probably Talk
Here’s something most first-home buyers in the Casey and Cardinia corridor don’t realise: the way your property is titled affects what happens to it when you die. Joint tenancy means the property passes automatically to the surviving owner — it doesn’t go through the Will at all. Tenants in common means each person’s share forms part of their estate and is distributed according to the Will.
If you used a conveyancer near me or a property lawyer to buy your home, the title type was probably set up as joint tenancy by default. That’s fine for most married couples. But for blended families, de facto couples, or anyone with children from a previous relationship, tenants in common might be the better structure. Your wills and estates lawyer can advise on which arrangement protects your family best.
Challenging a Will: When Things Go Wrong After Someone Dies
Not all Wills go unchallenged. In Victoria, if you believe you’ve been inadequately provided for in a deceased person’s Will, you can lodge a Family Provision Claim. This is the most common way of challenging a will in Victoria. Eligible applicants typically include spouses, children, stepchildren, and sometimes grandchildren or dependants.
The court considers your financial needs, the size of the estate, the nature of your relationship with the deceased, and any obligations the deceased had toward you. Contested wills cases are emotionally draining and can fracture families permanently. The best way to prevent one is to have a properly drafted Will that clearly explains your intentions and has been prepared with legal advice.
The One-Hour Investment That Protects Everything
A Will, a Power of Attorney, and a conversation about property title. Three things that take a combined total of maybe two hours and cost less than a weekend away. Three things that most Australian families put off until something terrible forces the issue.
If you’ve recently bought a home, had a child, or gone through any major life change, this is the nudge. Find will lawyers in your area, book the appointment, and get it done. Future-you will be grateful. And if something unexpected happens before that future arrives, your family will be protected instead of scrambling.
