If you die without a will it makes it very hard for your loved ones who are left to sort out your estate as they are bound by the laws which vary in each state.

Your next of kin will apply for what is called Letters of Administration, which will give them the power to stand in your shoes and call in your assets.

Who is considered your next of kin is not straightforward! If you are separated and not divorced yet, then your next of kin is likely to be your ex, and then your parents, siblings, or a friend would have to contest to apply instead. Maybe you have adult children and would want to be considered your next of kin, but if you’re in a new relationship the State laws may say it would be your new partner, ahead of your children. All of this is very stressful on the people involved and time consuming and could have been avoided with a will.

Once the next of kin has been worked out, the focus is on your assets.

The assets must then be gifted in the exact proportions as outlined in your State legislation, known as the “intestacy table” in each State. Who gets what under the intestacy table varies greatly State to State, and across Australia.

The Administrator will also have control over your funeral, as well as burial or cremation choices, again leaving a will would avoid all of this and put you in control of what happens to you and your estate upon your death

A medical power of attorney authorises healthcare decisions to be made on your behalf by a designated person, while a financial power of attorney allows for an authorized individual to oversee your finances if needed.

In general, a power of attorney is a document authorising someone to make decisions on behalf of another person.

Similar to dying without a Will, if you lose the capacity to make decisions for yourself and you need someone to make financial, personal, or medical decisions for you, your next of kin will have to apply for that right from the relevant Tribunal in your State.

Complications arise where it is not clear who the next of kin is, and again this is especially complicated where you may be legally separated from a spouse but the divorce is not legally finalised.

The person appointed will be controlling your money, making decisions about where you live and who can visit you, and what medical treatment you should receive, or cease to receive.

It is critical that the right person or people are making these decisions for you. It is important to have this person/s appointed and with their powers documented in a legally binding format, as unless you have a degenerative condition (like dementia or Alzheimer’s) the need to rely on these documents often arises in an emergency setting, after a sudden accident or illness. The shock to your family will be stressful enough, without having to make an application to the local tribunal to make these decisions for you.

An Estate Plan doesn’t just gift assets, an important element is transferring control to the right people- if you’re alive and can’t make decisions for yourself, or if you’ve died and you need someone to act on your behalf and carry out your responsibilities and wishes.

Non-asset based elements of an Estate Plan include:

1. appointing an Executor who has the right to decide what your funeral should be like, and whether you are buried or cremated;

2. your Executor will represent your interests to finalise any family law matters that may not have been completed yet;

3. your Executor will wrap up any business interests, pack up your home and possessions, and other responsibilities that you had in your life;

4. appointing a guardian of your children;

5. choosing an Attorney to make decisions about your finances and where you will live;

6. choosing a Medical Treatment Decision Maker / Guardian to make medical decisions for you;

7. a Letter of Wishes (not included by all lawyers) also helps to communicate any non-legal wishes (like what happens to your digital assets) and values to your loved ones after death.

Thinking about strictly monetary assets though, don’t forget that you need a plan for any superannuation and life insurance you may have. That terrible saying: “worth more dead than alive” is often true, so even though you may not feel like you have much in life you will often have something in death.

No, a new Estate Plan is an urgent priority after you have separated! Because your spouse will most likely inherit everything under your old Will or the intestacy provisions in your State even if you have separated until the date that the Divorce Order is granted by the Court.

Given that you have to be separated for at least 12 months before applying for a Divorce, this is a long and risky time frame.

If your children (under 18) have a surviving biological parent, guardianship will automatically pass to them unless there is a court order in place stating that they have “no contact” with that child (which is very rare).

You can appoint a Guardian for your children in your will, however, it is not legally binding. If anyone contests that appointment, the court will decide what Parentage Orders should be made, and to whom (or who else should be allowed to also spend time with your children). The Court will make this decision based on the circumstances at the time, and in the best interests of the child. As children age, their wishes will also become relevant.

If however, you have specific concerns about the child’s other parent not being a suitable Guardian for your child, due to a history or family violence, drug or alcohol abuse issues, mental illness, or simply estrangement from your child, your Family Lawyer and Estate Planning Lawyer can assist you to create a plan that addresses your concerns and puts your wishes in the best possible position for being followed.

Absolutely!

This is a deceptively complex area of law, with high-cost problems and risks if a mistake is made in the strategic approach or document drafting. Most mistakes must be rectified by the Supreme Court in your State, and this means that both lawyers and barristers are usually necessary. A simple oversight in drafting (a mistake, missing something, or unclear choice of wording) can cost tens of thousands of dollars to fix, and in some cases some mistakes are not fixable at all.

So while the documents that a lawyer might produce may look similar to templates found online, or in a will kit, a Simple Separation will and estate plan where you speak to our expert lawyers about your specific circumstances gives you peace of mind your will and documents will be drafted and stored correctly.