If you are ending a relationship you should think about your Will. There are a number of potential Estate problems that happen around the time of family break down or that happen because of blended families, including:
- If you are separated but not divorced and you die without a Will, your spouse gets your entire Estate
- If you are in a marriage or de facto relationship and you die with an old Will that leaves everything to your spouse, then your Estate (or most of it) will be inherited by your spouse.
- If at the time that you die you have started dating someone, and they claim after you are dead that it was a de facto relationship, your children may struggle to defend this claim and the girlfriend or boyfriend may get your children’s inheritance
- If you still own property as joint tenants and you die, even if your spouse wants to give your property to your joint children they would have to pay stamp duty and may not therefore be able to afford to transfer the property to your children. The property will then pass under that spouses Estate (i.e. potentially to a third party and not to your children). No stamp duty would be payable if you had fixed your Estate issues prior to your death.
- If you re-partner it may not matter what you write in your will. Once you cross the threshold to de facto relationship (and this can happen in less than two years and before you are ‘living together’) you will need legal advice and a binding deed between the two of you if you want your children to inherit. It is much easier to enter into these deeds early in the relationship, rather than put it off and either not get to it or have your spouse refuse.
These could be significant issues, for instance if you want your money to go to your children but your spouse has already re-partnered, your money may eventually be inherited by your spouse’s new partner.
You also need a Power of Attorney and Appointment of Enduring Guardian, which say who makes decisions if you are alive, but cannot make decisions for yourself. Unlike Estates, where the law says what happens if you die without a Will, if you are alive and someone needs to make decisions for you there is no legal right in any person to make decisions for you. It falls to all of the relevant stakeholders (family, close friends) to work together and if they can’t agree, you puts your doctors or your bank in a difficult or impossible position. Most people don’t like to think about these things, but it makes it much easier for your loves ones if you have something in place.
Unfortunately, many people put off making their Wills until it is too late. We have had to advise families on many occasions who have lost a loved one, or are carrying for a loved one, where these documents are not prepared. The remedies, if they exist, are costly and stressful. As we often advise clients, lawyers make far more money from the litigation surrounding Estates that have not been properly prepared, than they make from preparing the Estate properly in the first place.
You can speak with Jacinta Watkins, Janis Donnelly-Coode or Bruce Coode about making a Will, Power of Attorney or Appointment of Enduring Guardian, and any other supporting documents that may be necessary.