Your Will - Is your Family Protected?

We all want to do our best for our family and loved ones. No parent wants to see their child miss out or endure unnecessary hardship or heartache.

Poor estate planning, or a failure to plan at all, can lead to your loved ones missing out, and can lead to disputes which stay with the family forever.

This can be a costly, stressful and upsetting experience for your loved ones.

Writing a will is important but doing so alone can leave mistakes and unintended consequences.

Simple, DIY wills are a risk to your estate and often lead to disputes over estates.

Often, simple wills are woefully inadequate in dealing with complex family dynamics, such as blended families.

Complex estates can include legal structures such as companies and family trusts, which need careful consideration.

Creating a well drafted will enables you more choices, such as to leave amounts on trust for vulnerable beneficiaries or to appoint a guardian for your under-age children in the event both parents pass away.

As wills and estate lawyers, we see many problems after someone passes away that could have been prevented easily and cheaply by receiving good legal advice.

There are also other matters to consider in your estate planning.

The ownership of property in a blended family situation can often lead to issues between the intended beneficiaries after the death of the first spouse or de facto.

Further, the law in relation to who now constitutes a de facto is constantly changing.

Careful consideration needs to be given in relation to the drafting of clauses in relation to specific gifts.

For example, if you leave your vintage car or a piece of art to a particular individual, and then you sell that item, the gift more often than not will fail entirely.

Consideration also needs to be given to gifts of real property, which may ultimately need to be sold to pay an accommodation bond for residential care.

Many people are unaware of the existence of the Family Provision Act 1972 (WA), which provides that eligible applicants (primarily spouses and children of the deceased) can apply to the Court for an order that the distribution of the estate under the will of a deceased be varied to provide for an applicant that has further need.

Even where a valid and effective will has been made, not all your assets fall within your estate and are dealt with by your will. Such examples include your superannuation fund death benefits and any joint property you own with another person (for examples, where a house is held as “joint tenants” rather than as “tenants in common”).

While many families believe it will never happen to them, it is always wise to consider whether your will leaves your estate exposed to a legal challenge under the Family Provision Act 1972 (WA) due to a family member receiving an insufficient amount.

Without a binding death benefit nomination, your superannuation fund (or trustee of your self-managed superfund, where applicable) will be entitled to make a decision on who receives the benefit, with regard to any non-binding nomination that you have made.

Even where a binding nomination is made, it may be invalid if made to a person who is not dependent upon you (such as a parent). You can however elect for the benefit to go directly to your estate, where it will be dealt with under the terms of your will. Again, a well drafted will is key.

At Hale Legal, we are able to advise you on every one of these issues and address future problems in a cost-effective manner. Our friendly team will be able to walk you through each step so you can rest in the knowledge your family is protected.

To book a consultation, call 08 6144 4470 or email admin@halelegal.com.au.