The Importance of Estate Planning in Family Law
Every person, regardless of your age, wealth or financial assets should have Estate Planning documents such as a Will, Enduring Power of Attorney, beneficiary nominations on superannuation and life insurance and powers of appointments.
Making a Will is the only way to ensure your assets will be distributed according to your wishes. Appointing an attorney is the only way to ensure that a person you trust is authorised to make financial and personal decisions on your behalf if you lose decision making capacity. It is important that your current Estate Planning documents are appropriate for your circumstances – particularly if there has been a breakdown of a relationship.
Dealing with a family law matter is often an incredibly stressful time and parties to a relationship breakdown may not think about the legal implications of the current circumstances of their Estate Planning documents.
There are two ways through which property may be distributed following a persons’ death:
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)
If you have separated and you are in the middle of a family law dispute, your spouse may still have a beneficial interest in your estate, either by way of your Will or by intestacy. If your Will leaves your estate to your spouse and you have not updated your Will, then your estate may well go to your spouse according to the provisions of the Will.
If your spouse is your financial and personal attorney and you have separated, the appointment of your spouse does not automatically end.
It is crucial that you obtain professional legal advice pertaining to your specific circumstances.
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 revoked.
2. If there is no Will: Intestacy laws will apply.
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 professional 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 extensive litigation. It is important to ensure that your Will reflects your current circumstance and intentions.
Estate Planning is a complex area of law where 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, please contact Haven Legal Co.