1. If I die without a Will, the government will take my assets……. FALSE (sort of)

If you die without a Will (intestate) the law decides who receives your estate.

Below is a list of persons that are entitled to your estate:

• Your surviving spouse and or children, or
• If you don’t have a spouse or children at the time of your death, then to your parents if surviving, or
• If your parents did not survive you, then to your next of kin.

Your next of kin are your siblings, nieces or nephews, grandparents, aunts, uncles and cousins.

• If you have no next of kin surviving, then your estate will be deemed to have no rightful heirs or owners (bona vacantia) and your estate will pass to the State. (Division 2 – Distribution Rules Sections 25 to 39, The Succession Act 1981 (Qld))

2. If I leave someone a small amount like $20 then they can’t contest my Will….. FALSE

The family provision laws (Part 4 The Succession Act 1981 (Qld)) provides that if any person dies and leaves a Will and adequate provision is not made from the estate for the proper maintenance and support of the deceased persons spouse or child or dependent (possibly including a stepchild or parent of the deceased) the court can make provision for that person out of the deceased estate.     

When a court is assessing whether adequate provision has been made for that person such as a child or spouse, the court will consider the size of the estate, the financial position and need of the child or spouse as compared to the other beneficiaries and the relationship between the deceased and the child or spouse.

So, leaving a person a nominal sum like $20 will not prevent that person from making a family provision claim against the estate. The court will consider several factors such as those mentioned above and decide whether provision should be made to that person from the estate.

3. Superannuation is part of my estate….. FALSE

Superannuation death benefits are not an estate asset.

The superannuation death benefits are paid to a Binding Death Benefit Nominee, if you have nominated one or to your estate if you have directed that your death benefits be paid to your estate.

In the absence of a binding death nomination, the trustee of the super fund has absolute discretion to pay the death benefits to whom they believe are your dependents, such as a child or a spouse.  

The trustee of the super fund does not have to follow your wishes contained in your will.

4. I don’t need a Will, I am too young and poor….. FALSE

If you have superannuation and a car then you have an estate and should make a Will to direct who you would like to receive your estate.   

If you die without a Will, then the law decides who receives your estate according to a specific formula so your estate my pass to a person that you do not want to provide for.  

5. My spouse and I want one Will….. FALSE

Wills are individual legal documents.   Each person must sign their own separate Will which must be witnessed by two independent adult persons.

A couple may have ‘Mirror Wills’.  This is where each person has their own separate Will, but the contents are the same (mirror) as the other.

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🌐 rmolaw.com.au
📧 mail@rmolaw.com.au

This article is for your information and interest only. It is not intended to be comprehensive, and it does not constitute and must not be relied on as legal advice. You must seek specific advice tailored to your circumstances.

Article Authorised by Tim Ryan