Wills | JLS Law

WILLS AND ESTATE PLANNING

Making a will is confronting. None of us like to think about dying. But nor do we want to leave our nearest and dearest with a complete mess when it comes to managing our estate. Please read over the basic information below, and send me an email if you would like my Wills Booklet or to make an appointment. My fees for making your Will, and if appropriate your Enduring Power of Attorney and Appointment of Medical Treatment Decision maker, are in the '"Fees" tab in this website. My fees include relevant advice about the best structure for your asset ownership for estate planning purposes, and how to structure your superannuation death benefits.

QUICK QUIZ – WILLS

Is my Will still valid if I get married?

It is revoked in its entirety unless you specify in the Will that you make it ‘in contemplation of marriage’.

Is my Will revoked if I get divorced?

It is not revoked, but those parts that appoint your former spouse as executor or make a gift to your former spouse are revoked.

Is jointly owned property part of my Will?

No. Jointly owned property vests in the surviving owner by operation of law. It will not form part of your estate.

Is my superannuation part of my Will?

Not usually, unless you nominate your legal personal representative as your death benefit beneficiary. Otherwise, your super fund will decide who gets your super, unless you have made a BINDING death benefit nomination and lodged it with the super fund. Most people have made a non-binding nomination, and are surprised that this does not bind the super fund. Without a BINDING nomination, the fund trustee can change the payee of your super, if it believes circumstances require this. I will advise you more about this when we meet to discuss your Will.

Is the answer any different if I have self managed super?

No. And it is vitally important if you have self managed super to ensure you have a Will AND, importantly, an Enduring Power of Attorney (Financial). This is a very complex area of the law and legal advice is imperative.

Will my Will be effective interstate or overseas?

Generally a Will validly made within Australia will be valid in all States and Territories. However, if you move overseas it is generally best to make a new will in that jurisdiction. This advice also usually applies if you live in Australia but have assets overseas.

Can I just use a will kit?

Kits are dangerous as they don’t come with legal advice. I give you broad legal advice about your estate in its entirety, not just the parts of it that fall into your Will. If you want to ensure you deal with your entire estate (including superannuation, trust assets and jointly owned assets) and that it benefits the right people, you really do need to consult a solicitor for sound legal advice. Then you can be certain your estate will end up in the correct hands.

Can I deal with the assets in my family trust in my will?

No. The assets don’t belong to you, they belong to the trust. All you can do is ensure that you pass control of the trust to the right person. Your will is an important document in achieving this.

I have had more than one partner in my lifetime. Do I need a Will?

A will is a vitally important step you must take in order to protect your family from unexpected financial difficulty when you die. Whilst the government very rarely gets your money if you die intestate (without a Will) it may be distributed in a way you did not foresee and which causes undue stress to your loved ones. This is particularly the case if you have had more than one partner.

When you die without a will, a statutory formula decides how your assets will be distributed. The formula will not always work in the way you would have wanted.

For example:

The formula says that if you die with a domestic partner but have children not of that partner, the domestic partner gets a ‘statutory legacy’ which is at the time of writing set at $499,210, plus all your personal chattels and 50% of whatever is left. Your children get the other 50% of whatever is left. This can result in a forced sale of the home in order to pay out the statutory legacy etc. If you make a Will, you can avoid this. Note: If there is not more than $480,700 in your estate after payment of all estate expenses, the partner gets 100% (nothing for the kids).
The formula says that if you die without a will, leaving a domestic partner who was living with you at the time of your death and had been with you for two years on that basis, or was living with you at the date of your death and is the parent of your child (so in this case, less than 2 years is ok) they get 100% of your estate. This may not be what you want. You might want to provide separately for your children or other people in your life. The only way to fix this is to make a will.

These problems are really only the tip of the iceberg. The only way to ensure your loved ones are financially secure on your death is to have a will.

I’m not divorced but I separated years ago and now have a new partner. Do I need a Will?

Yes. Under the laws of intestacy the definition of ‘partner’ includes your ‘spouse’ , your domestic partner or your registered domestic partner. If you separated but are still married, and now have a new domestic partner, this means you have multiple partners. There is a special section of the Administration & Probate Act that sets out what happens when you have multiple partners, but no kids, which says in essence that the partners must share the estate equally unless they agree otherwise. If they want to fight about the distribution they can make an application to court. This will be very expensive and will diminish your estate. My advice: Get a divorce and make a will.

If you have multiple partners and kids who are not kids of any of your partners, there is even more complexity and I recommend you make a Will.

We are a blended family. Do we need a Will?

Yes. It is imperative that you obtain good legal advice when either or both of you have children from prior relationships. A ‘basic’ Will that leaves all to your spouse/domestic partner is not usually the right approach in this situation. This leaves your children in a very awkward position if you die first. They would not get anything from your estate and are left to rely on the spouse/domestic partner to eventually do ‘the right thing’ by leaving them money on his or her death. This gets complicated if your spouse/domestic partner meets someone else after your death, and makes a will leaving everything (including your contribution to their estate) to the new partner. You must seek legal advice if you are in a blended family to ensure you get a Will that protects your children. There are various ways to do this, including leaving the spouse or domestic partner with a lifetime right to occupy a home, with the house going to your children on his or her death.

How much is it to make a Will?

See the 'FEES' tab in this website.