1. Your spouse may not receive the entire estate!
You may think that your spouse will be entitled to 100% of your estate but if you have children, including adult children, your spouse will only receive the first $150,000 and either ½ of the balance estate if you have one child or 1/3 of the balance estate if you have more than 1 child.
2. Do you have more than one spouse?
You can have two (or more) spouses at the time of your death. If you marriage breaks down and you move on and establish a de facto relationship with someone new, both your old and new partners may qualify as your spouse if you have not finalised your divorce. This means your estate would have to be split between your spouses according to the law of intestacy.
3. Is your partner considered to be a de facto spouse?
If you have been living with your de facto in a genuine domestic relationship for more than 2 years they will be considered a spouse and entitled to be a beneficiary.
This may mean that if you have children they will have to share your estate with a de facto spouse you hadn’t planned on leaving your estate to.
If you haven’t been living together for 2 years then a partner whom you consider to be your spouse/de facto and may have intended to leave your estate to, or a portion of it to, may miss out.
4. Children (or Issue) don’t include step children
Your estate will only go to your birth or adopted children and not any step children whom you may have wished to include as a beneficiary.
5. The State may get your estate
If you die without a next of kin the state will take the benefit of your estate.
6. You can’t leave any specific gifts
If you don’t have a will your beneficiaries will be left to the mercy of the administrator when deciding who gets any of your personal items such as jewellery, art or heirlooms and they may not end up going to whom who wished they go to – or the administrator may even sell the items!
7. You won’t have any say in who administers your estate
If you die intestate SOMEONE must apply to the Court for letters of administration – that person might not be who you want to be looking after the assets on your estate. If no one applies then the Office of the Public Trustee may take on the role, and will take a percentage of your estate as fees.
8. You won’t have any say in who acts as trustee of your infant children’s share
If you have children who are under the age of 18 their share will be held on trust until they turn 18. If you don’t have a will the person who is appointed as the administrator will also be the trustee of your children’s share.
9. You won’t have any say on who will be the guardian of your infant children
If you have infant children and no will appointing a guardian and the other parent dies before you then SOMEONE will need to apply to be the legal guardian of your children. This could result in either family members fighting (in court or out of court) over your children, or someone who you do not wish to be, becoming the guardian of your children.
10. You won’t be maximising your estate for your beneficiaries
You can use your will as a tool to set up trusts for your beneficiaries, transferring assets in a tax efficient way into trusts which will maximise the assets and minimise tax implications in the future for your beneficiaries – especially children.
Proper Estate Planning can avoid these potential problems.
We recommend contacting National Legal to plan your family’s future with asset protection and estate planning.
If you need further information to establish the most suitable asset protection structure for your specific case, please do not hesitate to contact us.