Many people do not prioritise estate planning or think about what will happen to their assets after they die. However, estate planning should sit on everyone’s “must do” list.
Proper estate planning helps you decide how your assets are distributed after death. It also reduces stress for your family and helps avoid costly legal disputes. These disputes often arise when no clear instructions exist.
Below, we answer common estate planning FAQs. This information is general only. We recommend you seek professional legal advice based on your circumstances.
What is a ‘Last Will & Testament’?
A ‘Last Will & Testament’ (or ‘Will’) sets out how you want your assets distributed after death. It records your wishes in writing.
A Will is different from a Power of Attorney (“POA”). A POA allows someone to manage your assets while you are alive. A Will only takes effect after death.
Do I need a Will?
The answer is yes.
A Will gives you control over how your estate is distributed. It also ensures your wishes are clear and legally recognised.
Without a Will, disputes often arise. These disputes reduce the value of the estate and increase legal costs.
This risk becomes even greater for smaller estates. Legal fees can quickly consume assets, leaving beneficiaries with very little.
Should I update my Will?
A Will does not expire. However, you should review it regularly.
You should also update your Will when major life events occur, including:
- marriage
- divorce
- birth of children
- inheritance
- purchase of property
You should seek legal advice before updating a Will. Even small changes can create unintended legal consequences. All updates must be properly signed and witnessed to remain valid.
Who should receive my assets?
You can choose who receives your assets. However, legal advice is important before making these decisions.
You should consider all dependants, including children.
Blended families and estranged relationships require careful planning. Excluding someone from a Will can increase the risk of disputes.
Who should I appoint as Executor?
An Executor carries significant responsibility. Many people choose a family member or close friend. However, this role often involves complex legal and administrative duties.
An Executor may need to:
- arrange the funeral
- manage estate assets
- apply for probate
- pay estate debts
- manage disputes between beneficiaries
Some estates involve conflict. In these cases, the Executor may need to manage disputes during administration.
You may consider appointing an independent Executor if conflict is likely. This option helps ensure fair and neutral administration.
However, independent Executors charge fees. These fees vary depending on the estate. Legal advice can help you decide the most suitable option.
What happens if I die without a Will?
If you die without a Will, the law treats you as dying “intestate”. State law then decides how your estate is distributed.
You lose control over how your assets are distributed. The outcome may not reflect your wishes.
Intestacy often causes disputes between family members. These disputes commonly lead to family provision claims.
No Executor is appointed under intestacy. Instead, someone must apply to the Supreme Court to administer the estate.
This person may be a beneficiary, creditor, or solicitor appointed by the Court. You do not choose who takes this role.
This process can increase costs, delay distribution, and create avoidable disputes.
Can a Will be disputed?
A Will can be challenged after death, even when proper planning has been done.
A Court may overturn a Will if it finds that you failed to provide for someone you had responsibility for. This may include dependants or family members.
A Court may also overturn a Will if it finds that you lacked mental capacity when you created it.
This may occur if you suffered from conditions such as dementia, memory loss, or other serious illness.
A properly prepared Will reduces the risk of disputes. It also strengthens your intentions for how your estate should be distributed.
Without proper planning, disputes can cause significant financial and emotional consequences.
We strongly recommend you obtain legal advice before preparing or updating your Will. We have extensive experience in this area and can assist with any questions.
If you or someone you know needs more information, help, or advice, please contact us on 07 5576 9999 or email [email protected].
