All your questions answered - with a little help from our Ambassadors, Franki & Bronti.
In Estate Law, there are always some questions which are frequently asked and which we believe the answers to should be readily available to the public. Most importantly - these should be free.
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What is a Will and do I need one?
A Will is a document that you prepare whilst you are living and have capacity which appoints a person (or persons) who will administer (do what is needed to be done) your estate (i.e. assets) in the way that you have directed (told) them you want it to be distributed (i.e. given away).
I don't have many assets (if any), do I still need a Will?
Yes. You do. It is important to have a Will regardless of what assets you own. You never know what will happen after you die. Family members and friends could start to argue over what should happen. Death unfortunately tends to bring the worst out in people primarily because everyone deals with grief in their own way. A Will provides those left behind some certainty and clarity over what you want done with what.
Also, if you have superannuation or life insurances, the trustee of those funds may make the decision to pay the monies into your estate. And if you do not have a Will to direct who should get what, then the state laws will decide that.
Even if it is your spouse or parents who are to administer your estate , they may have to make an application to the court to be able to properly deal with your estate.
What if I die without a Will?
If you don’t have a Will when you die, you are said to have died intestate (which is a Latin word that means without a Will). The relevant State laws of intestacy will determine who gets what.
In Qld it means that if you have a spouse, but no children, your spouse would get everything. If you have a spouse and children, then your spouse will get some of your Estate ($150,000 worth of assets and the furniture and effects) then your spouse would share the remainder with your children.
See our blog titled “Dying without a Will - how the Estate is divided up” for further details.
What is an Enduring Power of Attorney and do I need one?
An Enduring Power of Attorney (EPA) is a living document i.e. a document that is only effective when you are alive.
An EPA appoints an attorney who will be able to make decisions on your behalf regarding both personal (i.e. if you are to enter into a retirement home or assisted living) and/or financial. You can decide at the time of creating the EPA when it will take effect - i.e. immediately or when you lose capacity to make decisions yourself or if you are overseas or at some other event.
If an EPA is to be used to purchase, sell or transfer real estate, then it will need to be registered.
I have an Enduring Power of Attorney from another state - does that cover me in Qld?
Yes it does, provided it was properly prepared in that other State. Each State and Territory in Australia recognizes the other State or Territories EPA’s. You do not need to create a new one in each State.
If I make a Will in one state, does that cover all my assets in Australia?
Yes it does, provided it was properly prepared in that other State. Each State and Territory in Australia recognizes the other State or Territories Will’s. You do not need to create a new one in each State.
If I move to another state in Australia, will I need to update my Will and Enduring Power of Attorney?
I have assets in Australia and overseas, will my Australian Will cover everything?
Maybe. In 2015 Australia acceded (agreed) to the Convention Providing a Uniform Law on the Form of an International Will 1973. All States and Territories in Australia have laws which introduced an 'international will', which is recognised as a valid form in all countries that are party to the convention.
The Counrties that are parties to the convention can be found on the the Unidroit Convention website.
Whilst the Will may be valid in those countries, the laws of those countries regarding the administration of the Will are to be followed (i.e. Australian administration laws will not apply to an overseas country despite them recognise as valid the Australian Will.
What if I have assets in a Country that is not a party to the convention regarding International Wills?
You will need to prepare a separate Will in each country where you own assets.