The Queensland Public Trustee is reminding Queenslanders who’ve made their relationship official in March – Australia’s most popular month to marry – to add a will to post-wedding activities.
Samay Zhouand, the Public Trustee of Queensland, says that whether you already have a will in place or have never made a will, it’s wise to seek advice on how your new marriage or civil partnership could impact the administration and distribution of your assets when you die.
“Many people don’t understand what causes a will to be revoked, or the difference between how marriage, civil partnerships and de facto relationships are treated under Queensland law regarding wills, even though the outcomes can be serious for the loved ones they leave behind many years later,” he says.
“Ensuring your will is valid isn’t most people’s idea of romance but protecting the people you love from additional stress, and potential financial hardship, is a way to continue caring for them even when you’re no longer here.
“Likewise, if you don’t currently have a will, it’s important that you know what your spouse and family will receive from your estate when it’s shared out according to legislation, not your personal wishes.”
Queenslanders can make an appointment with their preferred solicitor for advice on how marriage, civil partnerships and de facto relationships will impact the distribution of their estate and whether they should make a new will.
Alternatively, they can make an appointment with Queensland Public Trustee to have a will made at no cost. For a will-making appointment, go to www.pt.qld.gov.au.
How getting married or entering a civil partnership impacts your will
Queensland’s Succession Act 1981 says a will is revoked by the marriage or civil partnership of the testator. The testator is the person who makes the will.
The exception to this occurs when a will is made with the testator’s expectation of getting married or entering into a civil partnership. In this case, your will should ideally state that it was made ‘in contemplation’ of your future marriage or partnership.
Why it matters if your will is revoked
If your will is revoked, failing to make a new will means you’re at risk of intestacy. ‘Intestate’ is the word for dying without a valid will or where your will doesn’t dispose of your entire estate.
If you die intestate, the Succession Act 1981 decides who gets a share of your estate and what share they receive, which could be very different to how you would’ve preferred to distribute your assets.
Who inherits your estate if you die intestate
Under the Succession Act 1981, in an intestacy your spouse receives the first $150,000 in money or assets in your estate, as well as what’s called your ‘household chattels’, which includes your furniture, pets and other home contents.
Household chattels don’t include assets such as vehicles, original artwork or jewellery; those valuable items form part of the rest of your estate. What’s left of your estate after that $150,000 and household chattels is called your ‘residuary estate’.
Whether you have children and, if so, how many children you have, determines how your residuary estate is distributed.
If you have no children, your residuary estate goes entirely to your spouse. If you have one child, your residuary estate is divided in half, with your spouse and child each receiving 50%.
If you have two or more children, your residuary estate is divided into three, with your spouse receiving one-third and the other two-thirds being divided between your children.
“The order of succession can have serious impacts on the loved ones you leave behind,” Mr Zhouand says.
“For example, if you have young children at the time of your death and the family home is the biggest asset in your estate, your spouse could end up only part-owning the home you shared, with the remainder of the home held in trust for your children. That situation means your spouse may not be able to refinance to try to make mortgage repayments affordable without your income.”
How de facto relationships are treated under succession law
Under the Succession Act 1981, a de facto partner of two or more years is considered your spouse, in the same way your marriage partner or civil partner is your spouse.
If you die without a valid will, your de facto will be the first in line for a share of your estate.
The Public Trustee of Queensland cautions, however, that determining whether your relationship is a de facto relationship under the law may not be straightforward.
“Queensland legislation provides a long list of factors that the court will take into account to determine the nature of your relationship,” Mr Zhouand explains.
“Cohabitation is one of those factors but there may be reasons that, even if you don’t live together, such as due to health or care needs, the court may still determine that you are de facto partners.”
How divorce, termination of a civil partnership or separation from a de facto partner impacts your will
Formally ending your marriage or civil partnership, or separating from your de facto partner, revokes the part of your will that relates to any gifts you may have left your ex-partner. If you have left your entire estate to your ex-partner, your will may be completely revoked.
If you’ve chosen your ex-partner as your executor, this is also revoked in most circumstances. If you haven’t nominated an alternative executor in your will, your estate may be left with no executor and will have to apply for a Letter of Administration from the court so an administrator can be appointed.
“Dying without an executor because you didn’t review your will after the end of your relationship could leave your family with the cost of going to court and risks slowing down the distribution of your estate, potentially leaving loved ones without vital financial support,” Mr Zhouand says.
“The same as when you get married or enter a civil partnership, formally leaving those relationships should be a trigger to think about whether you need to make a new will or update your existing will.
“Another key thing to remember is that separating but not divorcing or terminating your civil partnership doesn’t revoke your will. This means that your estranged husband, wife or civil partner is likely to receive any gifts you left to them in your will.”
