This article was written by Grace Blake Solicitor and Nancy Wang Principal Solicitor at W & G Lawyers.
Each year the Queensland Public Trustee runs Wills Week to encourage Queenslanders to stop and think about their will. This year’s Wills Week ran from 7 to 13 September under the theme “Life changes, so should your Will”. A will is not a document you sign once and forget.
The Public Trustee’s latest research found that fewer than half of Queenslanders aged between 40 and 60 have a will. Among Queenslanders over 65 who do have one, around one in three have never updated it. An out-of-date will could leave out the people who matter most to you now, or name an executor who can no longer act.
This article walks through the moments in life when your will deserves a fresh look.
What happens if you die without a will
If you die without a valid will in Queensland, the law decides who receives your estate. Your wishes do not come into it. A fixed formula shares your assets among your relatives in a set order, and only relatives are counted. Close friends, stepchildren and charities you care about are not included, so they may receive nothing.
The formula begins with your spouse. Your spouse means your husband or wife, your registered civil partner, or a de facto partner who has lived with you as a couple for at least two continuous years up to your death. A husband or wife you have separated from but not divorced still counts.
If you leave a spouse and no children, your spouse may receive your whole estate. If you leave a spouse and children, your spouse does not automatically receive everything. Your spouse takes the first $150,000 and the household contents, then one half of what is left if you have one child or one third if you have more than one. Your children share the rest equally, and the children of a child who has died before you may step into their parent’s place. Your children include adopted children and children born outside marriage, but not stepchildren.
Your parents come next, and only next. If you leave no spouse and no children or grandchildren, your parents receive your whole estate, shared equally if both are alive. The formula does not ask whether you were close to your parents, or whether they were part of your life at all. If your parents have also died, your estate passes to your brothers and sisters, then to your grandparents, and then to your aunts and uncles. Relatives more distant than a first cousin receive nothing. If none of these relatives outlives you by at least 30 days, your estate may pass to the State.
Without a will, there is also no executor. Someone, usually a family member, will need to apply to the court to administer your estate, which adds time, cost and stress. An out-of-date will can cause similar problems, since gifts to people who have since died may fail, a former partner could still be named, and your executor may be someone you have lost touch with.
Turning 18 and starting out
A car, savings, a growing superannuation balance and any life insurance attached to it could add up to a meaningful estate, even for a young adult who assumes they have nothing to leave.
If you are single with no children, dying without a will means your estate passes to your parents. That may be what you want, but it may not. You might prefer to leave something to a sibling, a partner you have not yet lived with for two years, or a close friend, none of whom would receive anything under the formula. A simple will lets you decide. It is also the ideal time to make an enduring power of attorney, so that someone you trust can manage your affairs if an accident or illness ever leaves you unable to.
Moving in together and getting married
A new relationship is one of the most common reasons a will falls out of date. Once you have lived with a partner as a couple for two years, they may be recognised as your de facto spouse. They could then inherit under the formula if you have no will, and could have a claim on your estate whether or not your will mentions them.
Until that point, your partner is not treated as your spouse. They would receive nothing under the formula, and unless they fall within a narrow category of financial dependant, such as the parent of your child under 18 whom you were supporting, they generally could not ask the court for a share of your estate either. A will is the only reliable way to provide for a new partner.
Marriage has an even bigger effect. In Queensland, marrying generally cancels any will you made beforehand, unless that will was made with the marriage in mind. A gift to the person you marry, and their appointment as your executor, may survive, but the rest of the will does not. Entering a registered civil partnership has the same effect. If you have recently married, or are planning to, a new will should be high on your list.
Having children
The arrival of a child changes what a will is for. It is no longer only about who receives your assets, but about who will care for the people you love.
Your will allows you to nominate a guardian to make the long-term decisions about your children’s care and upbringing if you and the other parent are no longer able to. A court can still step in if there is a dispute, but a clear nomination is the strongest indication of your wishes your family can have. Without one, your family may be left to work out who should step in.
Your will can also set out how your children’s inheritance is managed while they are young, the age at which they receive their share, and who looks after the money until then. For larger estates, a testamentary trust could offer flexibility and protection that a simple gift cannot. Each new child is a reason to check that your will still reflects your family.
Buying property and building wealth
As your assets grow, the details matter more. Some of your most valuable assets may not pass under your will at all.
Property you own with someone else as joint tenants usually passes automatically to the surviving owner, regardless of what your will says. Your superannuation, and any life insurance held through it, is usually paid by your fund according to your nomination, or at the fund’s discretion, rather than under your will. Many binding nominations lapse after three years and need to be renewed.
A contract you have signed does not end when you die. If you have bought off the plan, or are paying a builder in stages for a new home, your estate generally steps into your shoes and must complete the purchase or keep paying the builder, or answer for the default. A loan approval is personal to you and may not carry over to your estate. Check whether your life insurance would cover the balance owing, and whether the property and the works are insured in the right name from the day the risk passes to you.
If you run a business through a company, your shares pass under your will but the company continues, and who controls it in the meantime depends on its constitution. A personal guarantee you have given for company borrowing generally binds your estate. Assets held in a family trust are not yours to give away in your will at all. Control of the trust passes under the trust deed, usually through the roles of trustee and appointor, so those roles need to be planned alongside your will.
Separation and divorce
Separation is a time when updating your will matters most, and it is often overlooked. The rules differ for married and de facto couples.
If you are married, separation on its own does not change your will. A former partner could still inherit under your existing will, and still counts as your spouse if you have no will, until a divorce order takes effect. Divorce then cancels any gift to your former spouse and their appointment as executor, unless your will says otherwise.
If you are in a de facto relationship, the ending of the relationship may itself cancel gifts to your former partner and their appointment as executor. Exactly when a de facto relationship ended can be open to argument. A new will after separation lets you decide who should receive your estate and who should manage it, and removes the uncertainty. It is also worth reviewing your enduring power of attorney and superannuation nominations at the same time, as these may not change automatically when a relationship ends.
Blended families and new relationships
Second marriages and blended families raise some of the most difficult estate planning questions. You may want to provide for a new partner while making sure children from an earlier relationship are not left out. Stepchildren are not included when someone dies without a will, and a simple will that leaves everything to your partner may mean your own children receive nothing.
Even a valid will can be challenged. A spouse, a child, a stepchild or certain people who were financially dependent on you may be able to apply to the court if they believe they have not been adequately provided for. Strict time limits apply. Careful drafting, which may include a life interest in the family home or a testamentary trust, could reduce the risk of a dispute.
Later life
Retirement, grandchildren, downsizing, a move interstate or overseas, and the loss of a spouse are all moments to revisit your will. You may want to include grandchildren, adjust gifts to reflect help already given to one child, or leave something to a charity.
Check that your executor is still able and willing to act. If a beneficiary or executor named in your will has died, your will may no longer work as intended. It is also sensible to make any changes while your health is stable, since a will made or changed when there is doubt about capacity could later be questioned.
Your enduring power of attorney becomes especially important at this stage. Your will only takes effect after you die. If illness or injury leaves you unable to make decisions while you are alive, it is your attorney, not your executor, who can act for you. Once capacity is lost, an enduring power of attorney can no longer be made, so have one in place while you are still able to.
Making changes the right way
If your will needs updating, do not write the changes on the original. Notes or crossings out made after signing may not be valid and could raise questions about your intentions. It is usually safer to sign a new will in front of two independent adult witnesses who are present at the same time and who do not benefit under it. Keep only one signed original, store it safely and let your executor know where it is. Even if nothing major has happened, reviewing your will every three to five years is recommended.
How W & G Lawyers Can Help
At W & G Lawyers, we prepare wills and enduring powers of attorney for clients at every stage of life. If you do not yet have a will, we can prepare one that reflects your wishes. If you already have one, we can review it against the changes in your life and advise whether it still works for you. Where your situation is more complex, such as a blended family, a family business or assets overseas, we can talk you through options such as a testamentary trust. Our team takes instructions in English or Mandarin. Contact our office to book an appointment today.
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Disclaimer
This article is general information only and does not constitute legal advice under Australian law. For advice specific to your situation, please contact W & G Lawyers. For further details, please click here to view our disclaimer.