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Personal | Wills & Estates | Estate Planning | Private Individual | Estate Planning

Do I really need a Will?

If there is one thing I have learned practising in Wills & Estates for the past 10 years, it's people don't like talking about dying.

I get it. It's mysterious, overwhelming, scary, sad, and sometimes tragic. BUT just like taxes, it happens to the best of us.

Like other things we don't like thinking about, many people procrastinate about creating a Will and 52% of Australians die intestate (i.e. without a Will).

Whilst obviously this doesn't impact those people personally, it can cause a helluva kerfuffle for the people left behind. It can also mean things that were important to those people when they were living are overlooked after they're gone.

Here are a few facts about having (or not having) a current Will and Power of Attorney:

  • Getting married, getting divorced or simply breaking up? Doing any of these things can impact an existing Will – including revoking your Will and Enduring Power of Attorney (or part of it).
  • Have kids (THIS IS THE BIG ONE)? Unless you appoint a guardian in your Will, there will be no one with legal authority to look after them until an expensive Court application is made.
  • Your spouse doesn't immediately get your money/assets, the government decides who does. The government rules about what happens when you die without a valid Will (the intestacy rules) are different in every State of Australia but they don't automatically give everything to your spouse.
  • Accessing your finances isn't so easy (should something happen to you). If you are in an accident and lose your mental capacity, your spouse might not be able to automatically access money in your bank account without involving the Queensland Civil and Administrative Tribunal.
  • Even if you have zero dollars in your bank account, if you have superannuation, you have money. Superannuation is one of the biggest assets that people can have (because it usually includes a default level of life insurance) but it doesn't automatically form a part of your estate.
  • Step-children are treated differently. Step-children do not have the same rights as children under the Queensland intestacy rules.
  • Own your own business? Not having a valid Will and Enduring Power of Attorney in place can cause delays while the law figures out who is in charge as well as other catastrophic consequences for your business.
  • Do you have adult children in a serious relationship? Without proper estate planning, any inheritance you leave them might end up with your children's ex (yes, you read that correctly. We're not talking about your ex, we mean your child's ex!).

Making sure that you have a valid Will and Enduring Power of Attorney is important no matter what age or stage of your life. And before you ask, no you will not be protected if you do an online or Do-It-Yourself Will kit and here's why:

  • You don’t know what you don't know! Do you know what assets can be legally gifted in a will and what ones can't? Do you know how your debt is treated after you die? Do you know who can legally be appointed as an executor and who cannot?
  • Experience matters! We are experts in estate administration and estate litigation too – which means we know what works and what doesn't when it comes to choosing the right executors. The wrong choice can result in more of your money going to the lawyers, not your beneficiaries!
  • Speaking of lawyers… Even one mistake in your DIY option could result in a five figure Court application (at a minimum) while the lawyers figure out what you really meant to say…meaning your beneficiaries get less money and have to wait longer to get it.

"The content of this publication is for reference purposes only. It is current at the date of publication. This content does not constitute legal advice and should not be relied upon as such. Legal advice about your specific circumstances should always be obtained before taking any action based on this publication."