A Will is one of the most important documents that you will prepare in your lifetime. It's not something that you can set and forget. Whether you're married, have children, or have a blended family, your Will should be reviewed and updated at least every three years to make sure that it is still fit for purpose. If you don’t yet have a Will, let this be a gentle reminder to organise one now!
There are many reasons why your Will might need to be updated such as your children reaching 18 years of age or having grandchildren, you get married or start a defacto relationship (Please Note: If you Will was not created in contemplation of marriage then your Will is revoked upon marriage.), or you become separated from your spouse.
One of the most important aspects of Estate Planning is making sure your Estate goes to the people you want it to. While this may seem obvious, the primary reason this doesn’t occur is the failure to keep updated Wills. It is possible that your preferred beneficiaries might not inherit anything or the amount you want them to. Alternatively, your current Will might leave part of your Estate to someone who you feel no longer deserves it. Your Estate might as a consequence of many factors find itself in the throes of expensive and lengthy litigation, with loved ones arguing in court over who should receive what. It is important to try to minimise the likelihood of litigation by a clear and concise Will in accordance with your wishes.
A great Celebrity example of not updating a Will comes from Heath Ledger. The famous actor’s last Will was executed in 2003 leaving his Estate to his sisters and parents. In 2005, Heath Ledger and his partner Michelle Williams had a child, Matilda. Heath failed to update his Will after Matilda’s birth therefore leaving none of his Estate to either his spouse or child. Fortunately, Heath’s family gifted his entire Estate to Matilda avoiding the need for litigation. Heath was very fortunate in this situation but many have not been so lucky.
If you do not yet have a Will and die Intestate, then the Administration and Probate Act 1919 (SA) will determine the Order in which the Estate will be distributed. No notice can be taken of the wishes of the deceased unless they are not contained in a Will. A summary of the Statutory Order is as follows:
If the deceased leaves a spouse or domestic partner (at the date of death) and no children, the whole of the estate passes to the spouse or domestic partner.
If the deceased leaves a spouse (not including a divorced spouse) and a domestic partner, each is entitled to an equal share of the property.
If the deceased leaves a spouse or domestic partner and children the estate will be distributed as follows:
For Estates less than $100,000.00
The spouse or domestic partner will receive all of the Estate.
For Estates more than $100,000.00
The spouse or domestic will be entitled to:
Up to the sum of $100,000.00; and
Half of the balance of the estate; and
The personal belongings of the deceased
The children will be subsequently entitled to:
The balance of the estate in equal shares.
If there is no surviving spouse or domestic partner and only surviving children, the children will receive equal shares of the estate.
As is clear from the above, the Statutory Order may not be consistent with your wishes and will likely only increase the costs of administration for your estate therefore making the creation of a Will equally as important to updating your Will.
It is essential to obtain legal advice in relation to your personal circumstances and the creation of a valid Will. You can trust KD & Co Lawyers to assist you with preparing your new Will or updating your existing Will. Contact us today on (08) 7084 3060, or email us at firstname.lastname@example.org for a confidential discussion about how we can assist you.