The last thing on your mind when you are going through a family law separation is “hmm…maybe I should think about updating my Will”.  But it should be the FIRST!

Dealing with the breakdown of a relationship is stressful and very unsettling.  However the importance of cutting your ex-spouse out of your Will during a family law breakdown can not be overstated!  It is a vital step in any family law separation.  Updating your wishes in your Will is the only way to ensure your assets will be distributed the way you want them to be, which probably means not to your ex.

Separation

If you have separated and are in the middle of a family law dispute, your spouse may still be entitled to some of your assets, either through your Will or via intestacy. If your Will leaves your estate to your spouse and you have not updated it, then guess what?  There is every chance your estate may go to your spouse.  You may also want to update you will get guardianship of your children in your Will.

If your spouse is your financial and personal attorney and you have separated, the appointment of your spouse does not automatically end.  If you lose decision making capacity you probably don’t want your ex being able to access your finances and sell your house from under you.

It is crucial that you obtain legal advice pertaining to your specific circumstances.  You can always Book a FREE Chat with one of our lawyers.

How are assets distributed upon death?

There are two ways property can be distributed when someone dies:

1.  If there is a valid Will: the estate will be distributed according to the provisions of the Will

2. If there is no Will: the estate will be distributed according to the intestacy laws. The order of priority to this distribution is outlined in Part IA of the Administration and Probate Act 1958 (Vic). You can read more about this here.

Divorce

If you are divorced from your spouse, it is important to note the following:

1.  If there is a valid Will: the part of your Will that provides for your ex-spouse to be a beneficiary and/or executor and/or trustee is now revoked.

2.  If there is no Will: Intestacy laws will apply. You can read more about this here.

3.  Enduring Power of Attorney: the appointment of your spouse as your attorney is not revoked when you divorce. Your spouse remains as your attorney until you sign a new power of attorney document.

Again, it is important to obtain legal advice pertaining to your specific circumstances.

Family Provision Claims

An eligible person is able to apply to the Supreme Court of Victoria to seek adequate provision from the Estate of a deceased person. These applications can be costly and involve prolonged litigation. It is important to ensure your Will reflects your current circumstance and intentions.

Estate Planning is complex when it crosses over with Family Law. At Haven Legal Co. our Wills and Estate Planning lawyers take special care to advise you of the far-reaching implications of your documents and any actions that you are considering taking.

If you require advice with regard to your family law matter or the implications that the breakdown of a relationship is likely to have on your estate, Book a FREE Chat