Why should I make a Will?
We were recently asked by someone, “Why do I need to make a Will? I don’t have anything. I have a few dollars and a house in joint names and that’s it.” You might be in a similar position to this person. You might own your home (with or without a mortgage), as well as some personal effects, household contents, moneys in the bank, a car and superannuation.
You might think that you do not have ‘enough’ assets to make it necessary to make a Will however there is no minimum of assets required before you make a Will. You do not need to be wealthy to care about who should receive your assets. The point of making a Will is so there is certainty in relation to the role of Executor/Trustee and who are the beneficiaries of your estate.
What if I die without a Will?
If you pass away without a Will, then in order to administer your estate someone may need to apply to the Supreme Court to be granted Letters of Administration i.e. so they have the legal power to administer your estate. This person will need to explain to the Court why they are the appropriate person and why they should be considered over anyone else.
If I don’t have a Will, who will receive my assets?
You might think that your next-of-kin or your children will automatically benefit from your estate when you pass away. In circumstances where you do not leave a Will then at law you are said to have died Intestate. This means the State Law decides who is to receive your estate.
If you have a spouse/de facto partner then that spouse/de facto partner will receive your estate.
If you have a spouse/de facto partner and children then your spouse/de facto partner will receive your household chattels, as well as a portion of the remainder of your estate up to the value of $150,000.00. If you have assets worth over $150,000.00 then any assets worth over $150,000.00 will be divided as to 1/3rd to your spouse and the remainder amongst your children equally. In a situation where your child predeceases you, then that child’s own children will take their share in your estate.
It is of note that the reference to children in the above paragraph does not include step-children. This could mean that a step-child or step-children could be left without adequate provision from your estate leading to claims against your estate and significant legal expenses.
Who will receive my estate if I do not have a partner or children/grandchildren?
The Queensland Rules of Intestacy provide for the distribution of your estate depending on whether you have a spouse/de facto partner or children. If you die without a spouse/de facto partner or children/grandchildren then your estate will be distributed in the order of parent/s, siblings or their children if the sibling does not survive you, then grandparents and then uncles and aunts or their children if the uncle/aunt does not survive you.
So, should I still make a Will?
If you are reading the above thinking it sounds straightforward and that is what you would want to happen anyway then consider the following scenarios:-
- You own your assets jointly and you are the surviving joint tenant;
- You have remarried and you have children from your previous relationship;
- You have particular wishes regarding assets, for example, you would like one child to receive your house and another child to receive your cash;
- You would prefer to exclude a child/ren from your estate;
- You would prefer to create a testamentary trust, for example, to protect a child’s interest in your estate from creditors.
In many instances, if you have made a Will then there may be substantial savings in the cost of administering the estate.
What about my superannuation?
Your superannuation does not form part of your estate. The Trustee of your superannuation fund will decide who should receive your superannuation benefits after considering your nominated beneficiaries (if you have made a nomination) and your Will (if you have one) and whether you have a spouse/partner and/or children and/or financial dependants.
If you have made a valid binding death benefit nomination then provided you have nominated a dependent or spouse or your legal personal representative the Trustee must follow your nomination. There may be tax consequences depending upon your nomination.
If you do nominate your legal personal representative or the Trustee decides to pay your superannuation benefits to your legal personal representative then the benefits will be paid to your estate and may then be distributed in accordance with the terms of your Will. Your Will may enable the superannuation to be paid to a beneficiary who will not have to pay tax.
What should I do if I would like to make a Will?
If you would like to make a Will, please contact our office on 3267 8066. The initial appointment will take up to one hour. You do not need to bring anything with you or pay for our services at the initial appointment.