Frequently Asked Questions

Below are some of the most common estate questions and misconceptions that I come across.

Contact me at fiona@yourestatelawyer.com.au if your question isn't answered here.

A will is a legal document that clearly sets out your wishes for the care of your loved ones and distribution of your property and personal assets after your death. It can be as long or short as you wish, depending on your circumstances.

You sure do: everyone needs a will. If you don’t, you might make it harder for friends and family to put your affairs in order after you die. By making a will, you get to choose what happens to your property - and you protect the people you love from stressful negotiations and unnecessary legal fees.

In South Australia, anyone over the age of 18 can make a will. You need to make a will if you meet any of the following criteria:

  • You are earning an income
  • You have bought a house
  • You have any personal assets 
  • You have significant digital assets including email, digital storage, social media accounts etc
  • You have a super fund
  • You have any other investments
  • You own a business 
  • You are married or in a partnership
  • You are a parent, step-parent, foster parent or grandparent
  • You have received a financial windfall such as an inheritance, insurance payout or lottery win.

I get it. Talking about death isn’t at the top of anyone’s list of favourite things to do. And you’re not the only one: did you know about half of the Australian population die without a will! But dying without a will can cause your loved ones all sorts of headaches. 

After I have gathered all the necessary information and you have made your decisions about your wishes, I will have your will ready for you to review and to sign within one week.

You need a will even if you’re not “rolling in it”. Your life is worth putting on paper if you’ve got a job, a family, a bank account or a home. A will is for any person who wants to make their own estate plans rather than leaving it up to other people or to the government to decide.

Yes, you really, really need a will. Estate planning is not reserved for old people, retired people, or wealthy people. You do not need to have every facet of your life locked down before you make a will. You need a will just in case the worst happens, not least to save your loved ones from unnecessary expense and heartache.

Yes. Everyone needs a will and estate planning is not just for parents. Most peoples’ lives are more complicated than they realise, and rather than relying on the laws of intestacy, a will gives you the opportunity to make your own decisions about your funeral, care of your pets and the distribution of your super and other property and personal assets after your death.

You don’t need to have all the answers straight away. I know that there’s a lot to think about and it’s perfectly natural to have lots of questions.

I will guide you through it by listening and asking the right questions. My aim is to give you clarity and peace of mind by helping you to create a sound estate plan based on your wishes and preferences.

I see many estate problems arising from DIY wills. Your DIY will might be okay, but it’s best to check, just to be sure. You can book a free will check via my contact page.

You don’t need a lawyer to make a valid will but there are lots of things to consider when putting one together, including technical points to ensure the document is legally binding and practical considerations about the best way to distribute your estate.

The bottom line is that a DIY will might be cheap but it can end up more expensive and stressful after you die if your will is not fit for purpose.

If you die without a will or a valid will, your estate will be dealt with by the South Australian Government, following special laws known as ‘intestacy’. This means your estate will be dished out to certain people based on a formula set out in South Australian intestacy laws. The only way your loved ones can change this formula is by making an application to the Supreme Court. As you can imagine, this is a costly, stressful and drawn-out process.

Here are some examples of what can happen:

A married couple may have been separated for several years but not divorced. If one dies and there are no children, the surviving spouse receives all the estate.

A child’s parents may have separated when the child was very young and the mother may have raised the child without any real financial help from the father. The child becomes an adult and does financially well but dies without a spouse or children. The father is entitled to an equal share of the estate with the mother regardless whether the child had any relationship with him.

A young woman works hard and buys a home. She marries but overlooks transferring the home, now worth $500,000, into joint names with her husband. They have a child. If she dies without a will, under intestacy laws her husband receives $100,000 and one half of the balance of the estate (say $200,000). The other half of the balance ($200,000) has to be paid to the Public Trustee on behalf of the child. Her husband may have to sell the house or borrow the money to buy out the child’s interest and stay in their family home.

You’d be amazed at the things which can make a will invalid, from using the wrong pen to forgetting to put the date on it! There are numerous requirements for a valid will, and if any are missing or incorrect, the estate can be dealt with as if there were no will. It’s important to get it right. It can be hard to tell if a will is valid but a good estate lawyer should be able to do it quickly and easily.

Please don’t set and forget your will, as any changes could make it invalid. For instance, many people don’t know that getting married will automatically revoke a will if it was not considered at the time of making it.

If any of the following apply to you, it’s time to review your will:
 

  1. Your will is more than two years old
  2. You have a DIY will, including a will created from a kit
  3. Your will was created by a lawyer who is not estate focused
  4. You have changed your mind about the type of funeral you would like
  5. You have had children, or more children since writing your will
  6. You have acquired pets since writing your will
  7. Your financial situation has changed
  8. You have arranged life insurance
  9. You have established a self managed super fund
  10. You have married, formed a serious partnership, separated or divorced
  11. You have started a company or changed your investments
  12. You have reconsidered how you would like your assets divided up
  13. You’re less than 100% sure your will is valid.

Creating a watertight will is the best way to make sure your family gets most of your assets. I also work with your accountant to mitigate your tax liability wherever possible.

An executor is the name we give to the person (or people) named in your will to administer your estate. Their role is to represent you after your death and to sort out the estate according to your wishes. Their main responsibilities include making the funeral arrangements, obtaining a grant of probate, identifying your assets, paying any debts, sorting out any disputes and/or tax matters then distributing the estate to the beneficiaries. (Not sure what a grant of probate is? See below.)

Choosing an executor for your will is an important decision. During our discussions, I will support you to choose a person who is not only close to you, but who will be able to handle the administrative and organisational responsibility that comes with the role.

It is possible to appoint a professional person such as a lawyer to be your executor but I recommend that you choose someone close to you if possible. Your executor carries not just an administrative role but also a deeply personal one, so it needs to be someone you feel totally at ease with. Remember they can choose to engage a lawyer to help them with any technical aspects of your will if they need to.

If you have children who are under 18 years of age, you can appoint a testamentary guardian in your will who will be responsible for making sure your children are cared for in the event of your death. I always recommend that you speak with the people you have chosen to make sure they are happy to take on this role if needs be. 

Few people realise you can nominate someone to take care of your fur babies in the event of your death. You can also assign money or other assets to cover the costs of taking care of your pet. Just like guardianship of children, I recommend that you discuss your plans with the person you have chosen to make sure they are willing and able to help.

Facebook allows you to appoint a “Legacy Contact” to make decisions about your Facebook account if it is memorialised. Like any other digital asset, Facebook forms part of your estate and should be covered in your will. Digital assets include files stored on desktops, laptops, tablets, USBs, smartphones, and any other digital devices; as well as email accounts and emails received; digital music, photographs and videos; software licences; online stores; and all your digital accounts such as social networks, file sharing, financial, web hosting and tax preparation service accounts and more besides.

The bottom line is: it’s important to include the handling, disposal and distribution of your digital assets in your will. We can help you with this, along with a Digital Asset Plan which includes all the information required to access and handle your digital assets, including their location, usernames and passwords. 

You can, by including your wishes in your will. You can also arrange a pre-paid funeral, which is where you and a funeral director determine your funeral arrangements and the type of service you want. If this is what you choose, you simply need to bring the details to your appointment.

You do. You can dictate either burial or cremation along with the type of funeral service in your will. In particular if you want to be cremated you must prepare a will because certain members of your family can stop the cremation unless your wish is recorded in your will or some other signed (and witnessed) document.  

Cancelling or getting rid of a will is actually not as simple as many people think. You can tear up or otherwise destroy your will but before you do, you will need to make a new will which includes a “revocation” clause to remove any uncertainty regarding your intention. 

This is one of many cases where real-life wills are different to the movies! You should keep your will in a safe place and tell your executors where it is kept. If your will is lost or accidentally destroyed and cannot be found after your death, then it might be presumed to have been destroyed by you with the intention of revoking it. 

You can keep your will in our safe custody facilities free of charge or alternatively, you can keep your will in your own safe. I also recommend adding your will details to the Law Society of SA Wills Register to remove any uncertainty.

The Law Society of South Australia has recently developed The Wills Register: a secure electronic database holding the location and date of wills held by South Australian legal practitioners or law firms. It is only accessible to SA lawyers and is subject to stringent terms and conditions.

The Wills Register makes it easier for families to find a deceased person’s will, avoiding unintended and expensive consequences because the law assumes a missing or lost will has been destroyed by the testator.  

If you have your will stashed away somewhere at home, bring it in for a free will check. If it’s still good to go I can keep it in my safe custody facilities and add your details to The Wills Register on your behalf.

I get asked about my fees all the time: I think people might worry about lawyers’ fees spiralling out of control. I do things a little differently: to give you transparency and peace of mind I give you a fixed quote at the end of our first meeting. It all depends on your needs but to give you an idea, an uncomplicated will for a single person starts at around $440.

This is a good question. The answer depends on a number of factors, including the terms of your fund’s trust deed and any current and valid death benefit nomination you may have put in place.

For many of us, our superannuation is one of our biggest assets, so it’s important that any death benefit goes to the people you would want it to.  

It might come as a surprise to learn superannuation death benefits do not automatically form part of your estate, and that no dependant has an automatic right to the benefit. Depending on your super fund, you can make decisions about your superannuation death benefit rather than leaving it up to the trustee of the superfund to do it for you.

I can help you navigate the pitfalls of superannuation planning, while keeping in mind inadequate family provision claims and tax implications.

A death benefit nomination is how you formally advise the superannuation fund of your wishes for distributing your super after you have died. You can nominate one or more of your dependants to receive your superannuation death benefit, or you can  nominate your legal representative to distribute the benefit as part of your estate.

Completing a binding death benefit nomination means the superannuation fund must distribute the benefits exactly as per your wishes and has no discretion to vary or override them.

It’s important to know some superannuation funds don’t allow you to make binding death benefit nominations, which means the trustee of the superannuation fund gets to distribute any benefits as they consider appropriate in the circumstances. I can help you check whether this is the case for your super and you may consider switching super funds if it's not in line with your estate plan.

You can choose your beneficiary from a list of options, but the tax impact of distributions made under a binding death nomination is usually one of the major considerations in estate planning.

You see, not everyone is entitled to receive superannuation death benefits tax-free. For example, if your children are older than 18 and financially independent, they will only receive their share after the applicable taxes have been deducted. 

Someone can only receive your superannuation death benefit tax-free if they are:

  • Your spouse or de facto 
  • Your ex-spouse or ex de facto 
  • Your child aged under 18 years of age
  • Any other person with whom you have a close interdependent relationship.

Life is complicated. Superannuation is even more complicated. Because our personal circumstances change from time to time, it's important to review the estate planning and tax implications of your super regularly.

You can choose to give another person General Power of Attorney, which gives them the authority to act on your behalf  in relation to specific financial matters, at any time you choose. This does not mean handing over control of your financial matters and you can still deal with all your financial affairs. For example, you might need General Power of Attorney to buy or sell property for you. A General Power of Attorny is no longer effective if you die or become mentally incapacitated. 

Making an Enduring Power of Attorney is an important part of your estate plan. You have spent time and effort putting significant plans in place with respect to your future financial wellbeing. You give another person Enduring Power of Attorney to make decisions on your behalf about your property and financial affairs, particularly when you cannot do so for yourself due to mental incapacity.

Yes, provided the rules of your superfund allow it. Your attorney can make changes to your superannuation entitlements or make a death benefit nomination on your behalf in the event that you cannot do so for yourself due to mental incapacity.

An Advance Care Directive is a legal document which gives you the opportunity to set out your wishes, preferences and instructions for your future health care, living arrangements, personal matters and end of life. It gives you the chance to appoint a person to make decisions on your behalf should you be unable to make them for yourself.

If someone you love loses mental capacity and they don’t already have an enduring power of attorney or advance care directive in place, you would need to make an application for administrative and guardianship orders. 

An administration order appoints an individual or organisation to make financial and legal decisions for a person with mental incapacity. 

A guardianship order appoints an individual or organisation as a guardian to make decisions regarding accommodation, medical treatment and other personal matters on behalf of the person with mental incapacity. 

An order will only be made if the South Australian Civil and Administrative Tribunal is satisfied the person has mental incapacity and there is a need for an order to be made. Having a mental incapacity means not being able to make some decisions even after the necessary information, advice and support has been given to assist.

Please contact me to discuss your individual situation

Let's see how I can help you and your loved ones.

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