Most people would agree that having a Will is an important document to have in place, but not high on the list of fun things to do. However, studies show that at least 45% of Australians do not have a valid Will.
It is often one of those things that you think ‘I will sort out soon’ or ‘I will do that one day’. For most people there is no urgency until there is a pressing health issue or you are about to go on holiday. In reality, it is best to sort out your affairs now while you are fit and healthy.
If you have already prepared a Will it is also very important to keep it up-to-date so that it reflects your current life situation. In some cases a change in circumstance such as a marriage or divorce can mean some provisions in your Will may no longer be valid. As with the changes in your life, your Will should change with you through the different phases of life.
Below are some things to consider when making or updating your Will at different stages of your life.
You are 18-25 years old
Many young people think they do not need a Will as they do not have any assets, although they could be worth more than they think. If you are working, you would be contributing to superannuation which will have death benefits. Or if there is an accident while travelling or working, there may be an insurance payout.
If there is no Will, these items will be distributed according to Government legislation which may not be in line with your wishes. Not all assets are of financial value. Many items have significant personal/sentimental value.
You are getting married
If you are getting married, it is important you have a Will put in place or revise your existing Will.
If the unexpected were to occur, a Will can help protect you and your spouse from any legal or financial uncertainty. When you get married your existing Will is revoked, unless that Will was made in contemplation of the marriage. However, any provisions made to your spouse will be valid but not provisions for children or others you may have included in your Will. Therefore Government legislation will determine how the remainder of your estate will be distributed. This may not reflect your wishes, causing disputes and delays for your spouse and loved ones.
You have purchased or sold property
If you have sold property that you have specifically stated in your Will be left to somebody, you will need to update your Will. Selling property in these circumstances without updating your Will may mean beneficiaries may not receive their rightful entitlement.
Similarly, if you have purchased new property that you would like to specifically leave to someone, you need to update your Will to reflect your wishes.
You also need to be mindful of the way you own your property when deciding who will benefit from the asset when you are gone. For example if you own a property as joint tenants, under the survivorship rule the other party will automatically inherit the property.
You are a parent with young children
A Will allows you to nominate guardians for your children and state your wishes for your children’s care if unfortunately both parents pass away. Without this, your children may suffer the double trauma of losing their parents plus uncertainty for their future.
You should also review your Will at the birth of every child to ensure it reflects your wishes and the new child is included in your estate.
Testamentary Trusts can be set up for minors, which will allow you to provide ongoing support to your loved ones once you have gone. You can stipulate the terms such as the funds are to be used for the child’s upkeep and education and the remainder they can inherit at a certain age.
You are getting divorced or have entered into a defacto relationship
If you have a Will and get divorced your Will is still valid but any provisions for your ex-spouse will be invalid. If this occurs, Government legislation will determine who will get those assets.
If you have a Will and are separated but not divorced, the Will remains valid as will any provisions for that ex-spouse.
If you do not have a Will and are separated but not divorced, your ex- spouse may still inherit assets from your estate. Also if you are separated and have entered a new relationship both spouses may be entitled to share in your estate (spouse means married spouse and domestic partner).
It should be noted that a defacto partner can also make a claim on the estate if they can prove they were in a significant relationship with the deceased. Under the Relationships Act 2003 a significant relationship is defined as existing for a continuous period of at least 2 years (this includes same sex couples) or resulted in the birth of a child.
These situations can be very complicated and it is for these reasons that we recommend you review your Will whenever there is a change in your relationships.
You are retiring or just getting older
When you retire or get on in life you may see life differently. It can be a good time to reflect and make sure your Will is still in line with your wishes.
You may want to consider how your assets are going to be divided up between the family and extended family. You may have new grandchildren or your children may have entered into new relationships or you may have step children or step grandchildren to be considered.
It is also important that if you have made provisions to certain beneficiaries such as grandchildren that you update your Will when subsequent grandchildren are born.
Your partner has passed away
This can be a difficult time but another chance to reflect upon who is important in your life to ensure your Will expresses your wishes.
Whatever stage of life you are at make sure you have the correct estate planning documents to suit your needs.
How we can help
No matter how straightforward or complicated your situation is, Public Trustee solicitors can help you prepare your estate planning documents. Call us today on 1800 068 784 or please fill out our appointment booking form and a representative will contact you to confirm your appointment.