I am married/in a de facto relationship so my estate will automatically pass to my spouse/partner
This is the most common misconception. If you hold assets in your sole name, and you die without a Will, your assets will be determined by law. In Western Australia, the Administration Act sets out who will receive your estate. Your spouse or partner will receive a share, but will not automatically receive everything. It is more complicated if you leave children under the age of 18. If your spouse/partner claims all of the estate, they will need a Supreme Court order if it impacts on the entitlements of children under 18 – even if they are also your spouse/partner’s children. This can be devastating for the surviving family members and expensive to resolve.
I don’t have any assets so I don’t need a Will
This is often the view of young adults. You may not have a house or a business, but if you have personal items, a car, superannuation and life insurance your estate might hold a higher value than you think. You can choose through your Will how you want those assets to be distributed and the process of administering an estate is easier with an Executor appointed in a Will.
My superannuation is an asset of my estate
Superannuation is not treated in the same way as your other assets. It is the trustee of the superannuation fund who decides how those death benefits should be paid. There are different tax consequences for different beneficiaries so it is important to seek proper advice.
My partner and I own our house as joint tenants but I want to leave my half share to my adult children
You can’t do this. Property held by two or more people as joint tenants automatically passes to the surviving joint tenant/s. This also extends to shares, bank accounts, investments and other items which may are held jointly. These assets will not pass into your estate and cannot be distributed by your Will.
It’s too expensive – and I won’t be around to worry about it
The cost of a professionally drawn Will is significantly less than the legal costs involved in administering an estate where a person has died without a valid Will. If you have no Will or you have an informal Will you may be exposing your family to a complex and expensive legal exercise to administer your estate.
Contact Michaela Speering for more information about Wills & Estate Planning.