6 of the Best/Worst Myths for Wills
- I AM MARRIED SO I DON’T NEED A WILL
If you are married and die without leaving a Will, your estate assets will not automatically pass to your spouse. In fact, if you have children, your spouse will share the estate assets with your children. Under Queensland’s intestacy law rules, if there is one surviving spouse (which includes a de facto partner) then they are entitled to receive the first $150,000 and household chattels plus half of the remaining assets if there is one child or if more than one child then a third of the remaining assets. with the children receiving the balance assets. This may not be ideal especially if your children are minors.
Also, an Administrator may need to be appointed before the estate assets can be handled. This requires a court process which is much more costly than having a Will properly prepared now.
- IF I GIVE THEM SOMETHING THEY WON’T CHALLENGE MY WILL
This is just a myth as what matters is whether the amount you have left that person is adequate and proper in all the circumstances. This is determined by a subjective test with many considerations which can vary from person to person and change over time.
- I HAVE NO ASSETS SO I DON’T NEED A WILL
This belief is very commonly held by young adults who are new to the workforce and with little to no savings and no dependants. However, what is often forgotten or misunderstood, is that their superannuation may include life insurance. This life insurance often amounts to a couple of a hundred thousand dollars being paid out.
However, to receive this payout, their parents will need to apply to the court for letters of administration and incur the associated costs before the superannuation fund will release the death benefit payments to them.
- ALL OF MY ASSETS MAKE UP MY ESTATE
Many people do not realise that what they consider to be ‘their assets’ may not be. Assets held in a trust such as in a family trust or a superannuation fund are not owned personally but are owned by the trust. Unless proper plans are put in place to deal with these assets then your wishes regarding these assets simply may not eventuate – a Will does not automatically deal with trust assets unless specific and very deliberate action is taken to channel those assets into your estate. Likewise, many of us own property and other assets jointly with others but depending on what type of ownership is in place, when you die, your half interest may be dealt with either inside or outside your Will.
- PUT IN A WILL, IF THEY CHALLENGE MY WILL THEY WILL GET NOTHING
If only this worked! Unfortunately, this has no weight or significance at all. The rationale is that the right to challenge a Will is given to certain family members and financial dependants by Parliament. In Queensland, it is called family provision, and you cannot take this right away just by adding words of this nature to your Will. However, effective estate planning with a lawyer who specialises in this field can give you the result that you want and nullify the impact of a family provision claim.
- I DON’T NEED A LAWYER TO DO MY WILL, I CAN BUY A WILL KIT FROM THE POST OFFICE OR NEWSAGENCY OR DOWNLOAD A WILL FROM THE INTERNET
That a do-it-yourself Will suffices to fit all of the different situations that can apply after you die is just not possible. Also, what if your handwriting cannot be read or is misunderstood? Then your loved ones will need to apply to the court to decipher or make a determination as to your intended wishes. The end result, however, may not be what you had intended. The legal costs of fixing “homemade Wills” and dealing with the fallout after death are typically significantly more than having a Will properly prepared now. It is one of the greatest false economies of all time – not only the financial cost to your estate (and your beneficiaries) but the human cost in terms of stressful and drawn out processes and often disputes.
Prepared by Leanne Matthewson
This publication has been carefully prepared, but it has been written in general terms and should be viewed as broad guidance only. It does not purport to be comprehensive or to render advice. No one should rely on the information contained in this publication without first obtaining professional advice relevant to their own specific situation.