You may think that a will is a set-and-forget document: once it’s done, there’s no need to update your will. But the truth is that a will is a document that should be updated regularly, as your life circumstances change. The consequences of not doing so may be unintentionally catastrophic for your family.
Ten Reasons To Update Your Will
- Marriage. The act of marriage revokes any previous wills, and you’ll need to make a new will if you’re thinking of getting married. This is particularly important if you’re about to get married for a second or subsequent time. Blended families add an extra dimension of complexity to your estate planning.
- Separation and divorce. Marriage separation does not have an effect on your Will. The period of separation that occurs prior to divorce is possibly one of the most important times to ensure your Will reflects your changed circumstances. If you fail to update your Will upon separation and you pass away, your spouse may inherit any property you left to them.
- De facto relationship. A de facto relationship confers similar legal benefits to marriage, although you may have to prove you’re in a de facto relationship if an estate claim arises. A de facto relationship must be proved by evidence relating to living arrangements, sexual relationship, finances, ownership of property, and/or children.
- Children and/or grandchildren. Each time you have a child or grandchild, you should update your will. This doesn’t just cover any inheritance you’d like to leave them, but a will also includes the care of any minor children should you die before they become adults.
- Death of a beneficiary. Depending on his/her relationship to you and how your will was drafted, that gift may fail completely or pass elsewhere.
- Change of assets. If you give a beneficiary a specific gift, such as a house, and subsequently that item is sold, given away during your lifetime then, depending on how your will was drafted, that gift may fail completely.
- Divorce or bankruptcy of beneficiaries. If you have adult beneficiaries in your will, you can make arrangements to protect an inheritance from the risk of divorce or bankruptcy. This can also protect the next generation of beneficiaries from losing assets intended for them to a divorce or to creditors.
- Health problems. Estate planning doesn’t just mean having a will, it means having adequate measures in place should you lose the capacity to make financial and medical decisions for yourself. It is always best to implement a Power of Attorney and Advance Health Directive before you lose capacity, and always choose someone you trust.
- Procrastination. Some people put off making a will at all, until it’s too late and they die without one. In this case, the rules of intestacy will apply, which may mean your estate is divided in a way you wouldn’t want.
- Provision for life’s what-if moments. A will is not a simple document. It should consider all relevant factors such as: which assets will pass outside of your will, how your superannuation will be dealt with, whether to use trusts, the ages at which beneficiaries should inherit, who to appoint as guardians for your children; whether a claim may be able to be brought against your estate and many other factors which are often raised when meeting with a specialist in wills and estates.
We strongly recommend that you update your will at least every five years or after a major life event to ensure that it still reflects your wishes and is still valid.
Avoiding A Battle Over Your Estate
In thinking about updating your will, you may also be thinking about cutting someone out of your will. Always seek specialist legal advice before doing so.
In each of the states of Australia, the law casts an obligation upon a will maker to make adequate provision for certain persons. The definition of ‘certain persons’ differs from state to state. In Queensland, a will maker ought to make adequate provision for the following persons:
· Former spouse (in limited circumstances);
· A dependent (in limited circumstances).
Any of these persons may make an application to the Court for further provision from your estate. The Court determines an application for provision in a two-stage process, determining whether the applicant has been left without adequate provision, and then how much provision ought to be made to the applicant. Some of the factors the court will take into account when making its decision include the nature of the relationship between the deceased and the applicant, the size of the estate, the financial resources of the applicant, the age of the applicant, whether the deceased made any provision for that person during his or her lifetime, and the character and conduct of the applicant.
For expert estate planning advice, please contact us today. We offer a FREE, 10-minute phone consultation.