Whilst it is an emotional time when you are going through a separation, it is important to review your estate planning documents to ensure that they reflect your wishes.
What are some reasons as to why you should review your estate planning documents?
- If you have divorced, your Will and Enduring Power of Attorney may have been automatically revoked. If this is the case, you may not have any documents in place if you were to pass away. This may mean that you have died intestate (without a Will).
- If on your death you have separated but not yet divorced and have not left a valid Will (died intestate), the Succession Act 1981 (Qld) outlines who will benefit from your estate. In such a case, your “ex” may be classified as your “spouse” and benefit from your estate on the rules of intestacy. This may not reflect your wishes.
- Would you trust your former spouse to manage your child’s inheritance on your death? This may be a possibility if you do not have a valid Will which appoints an alternative person to act as trustee.
- If you have separated and have not divorced and no longer have capacity to make medical decisions for yourself – would you want your former spouse to make such decisions for you?
- If you have separated and have not yet divorced, an Enduring Power of Attorney which has appointed your former spouse as attorney is not automatically revoked. It is important to check whether your former spouse is an attorney to make financial decisions for you immediately. If there is such immediate power, your former spouse could make financial decisions on your behalf (for example: accessing bank accounts, selling assets).
- If you have nominated your former spouse as a beneficiary on a superannuation death benefit nomination, they may receive this on your passing. Accordingly, it is important that you review this as you may not wish for your former spouse to benefit from your superannuation.
- Check whether any real property is held as joint tenants with your former spouse. If so, you may wish to sever the joint tenancy. If you were to die without severing the joint tenancy, your surviving former spouse may become the sole owner of the property. This may not accord with your wishes.
- Review any family trust deeds to see whether your former spouse holds any positions of control (such as the ability to remove or appoint a trustee).
The Small Business Lawyer offers competitive fixed fee services to draft your estate planning documents (such as your Will, Enduring Power of Attorney, company Power of Attorney and Advance Health Directive). If you have recently separated and would like to discuss your estate planning, please contact us to arrange a consultation. Our initial consultation may be held in person or via Zoom.