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Frequently
asked questions

ONLINE LEGAL DOCUMENT PROVIDER SINCE 2010

FAQs - Estate planning

Does my superannuation (super) form part of my will?

Normally, upon the death of the member of a superannuation fund the trustees of the fund pay the member’s benefit to the spouse, dependant children or someone of their choosing. This is a discretionary power held by the fund trustees. Your superannuation will not automatically be included in your estate. If you wish to nominate the beneficiaries of your super, you may be able to complete a binding death benefit nomination form (BDBN) with your super fund. Once completed and approved by the super fund, this form will essentially dictate how your superannuation should be dealt with when you pass away. Some super funds do not allow BDBNs, in which case you can complete a non-binding death benefit nomination form. This form is non-binding on the trustees of the super fund, however, it will still serve the purpose of communicating your wishes to the trustees.

Can I give away my insurance through my will?

If you hold any life insurance policies, the nominated beneficiary under the policy will receive the insurance upon your death. This insurance does not form part of your will. You can easily nominate your beneficiaries in the insurance policy. If there is no nominated beneficiary and you own the policy the insurance proceeds will form part of your estate upon your death.

Can I give away jointly owned properties under my will?

A property (i.e. your home or investment property) owned jointly (as opposed to as tenants in common) cannot be given away under your will. Pursuant to the law of survivorship, the property will pass away to the surviving co-owner automatically irrespective of the will. However, if the property is owned as tenants in common, either in equal shares (i.e. 50/50) or in unequal shares (i.e. 30-70) then this property will form part of your estate and can be distributed through your will.

If you are unsure about how your property is held then you could ask your bank for a copy of your title or we can search your property title to find out.

Can I confer my assets on my de facto or same-sex partner under my will?

Yes you can. Under the current laws, a same sex partner or defacto partner is in a similar position to a married spouse. Accordingly, you can give your de facto or same sex partner assets under your will. Further, you can consider registering your relationship (same sex or heterosexual domestic relationship). Registration gives the couple formal recognition of their relationship in Victoria (similar provisions can be found in other States). A standard relationship certificate provides conclusive evidence of the relationship, making it easier for a partner to benefit under a will without having to prove their relationship. The certificate also means that they will not need any further evidence that their relationship exists for other official purposes. Registration of a domestic relationship under the Relationships Act 2008 (Vic) is also acknowledged by the Commonwealth.
Please contact us if you would like to know more about registering your relationship.

What are Testator Family Maintenance (TFM) Claims?

If you fail to make appropriate provisions in your will for a dependant then that dependant can make a claim for a share in your estate on your death.  If one of your dependants expected to be a beneficiary under your will and believes they have not been adequately provided for in your will, they may be able to bring a claim under Part IV of the Administration and Probate Act 1958 (Vic).  This is known as a testator family maintenance claim (TFM claim).

It is possible for the following people to commence a TFM claim upon your estate: your surviving spouse or de facto partner, your children (including ex-nuptial, adopted and stepchildren), your parents, a divorced spouse who is receiving or entitled to receive maintenance from you at the date of your death and any other person for whom you have a responsibility to provide. Therefore, it is advisable to adequately provide the proper maintenance and support to such persons that you have a ‘responsibility’ to provide for.

If a TFM claim is made, the court must take into account the following in determining the application:-

  • a. any family or other relationship between the deceased person and the applicant, including the nature of the relationship and, where relevant, the length of the relationship;
  • b. any obligations or responsibilities of the deceased person to the applicant, any other applicant and the beneficiaries of the estate;
  • c. the size and nature of the estate of the deceased person and any charges and liabilities to which the estate is subject;
  • d. the financial resources (including earning capacity) and the financial needs of the applicant, of any other applicant and of any beneficiary of the estate at the time of the hearing and for the foreseeable future;
  • e. any physical, mental or intellectual disability of any applicant or any beneficiary of the estate;
  • f. the age of the applicant;
  • g. any contribution (not for adequate consideration) of the applicant to building up the estate or to the welfare of the deceased or the family of the deceased;
  • h. any benefits previously given by the deceased person to any applicant or to any beneficiary;
  • i. whether the applicant was being maintained by the deceased person before that person's death either wholly or partly and, where the Court considers it relevant, the extent to which and the basis upon which the deceased had assumed that responsibility;
  • j. the liability of any other person to maintain the applicant;
  • k. the character and conduct of the applicant or any other person; and
  • l. any other matter the Court considers relevant.

You should contact a solicitor if you believe challenges on your estate may be likely.

What happens to my overseas assets?

If you have overseas assets, you can include instructions in your Australian will about the distribution of your overseas assets to your preferred beneficiaries. However, it is advisable to draft a will in the country you have the assets, to ensure the appropriate distribution of those overseas assets when you pass away. Since the overseas assets are located in a different country with its own laws, rules and regulations, it will be wise to draft a will in that specific country. We encourage you to consult solicitors if this may apply to you.

Who is responsible for my liabilities after death?

In Victoria, responsibility to pay a liability passes with the asset (if the liability relates to an asset), unless a contrary intention appears in the will. You need to make sure that you provide specifically in your will for how you want liabilities to be dealt with upon your death.

What are Mutual Wills?

Mutual wills act as a contract between parties and are usually made by separate documents in which two or more persons execute separate wills to leave his or her property to the surviving one, and then the survivor is to leave the property to the beneficiaries that have been mutually agreed upon between each other. The terms of the mutual wills can be altered or revoked by agreement between the parties. However, upon the death or incapacity of one of the parties, the terms of the mutual will can no longer be revoked or altered. The law will protect the second beneficiaries of the deceased’s will (for example, your children) against the survivor revoking their will after your death. If you require this type of will you will need to consult one of our solicitors at McMasters’ Solicitors to conduct a comprehensive review of your circumstances and estate planning needs. McMasters’ Solicitors can be contacted on (03) 9583 6533.

What are Mirror Wills?

Mirror wills are wills that are identical to each other. However, these differ from mutual wills in that the persons making these wills may revoke or alter their wills at any time.

Is my will still valid if I get married or divorced?

Usually, if you become married, any will you made when single/divorced is revoked (cancelled). There are some exceptions to this (e.g. if the will was made in contemplation of the marriage), but it is always advisable to make a new will after marriage.

If you become divorced, any will you made while married may be affected (this depends upon the law of the relevant Australian State or Territory). In Victoria, for example, your divorce will revoke any gift in your will to your former spouse, and any appointment of that spouse as executor or guardian under the will. In other States, the effect of divorce is different. The safest thing to do is to make a new will when you get divorced (or if you are separated or involved in family law proceedings prior to divorce), and make a new will if you re-marry following divorce.

More helpful information

Have a look at the resources available under the 'Video and technical material' section.

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