A Guide to Wills for Young People — and When to Use a Lawyer for Wills
If you are quick to throw the idea of writing a will into the 'nothing I need to be concerned with' basket, then you certainly aren't alone. Many Queenslanders are under the false notion that younger people don't need to worry about wills. Estate lawyers have the unenviable task of helping families who've lost younger adult family members, and at Bradley & Bray, we are no exception.
As one of the Sunshine Coast's most reputable law firms when it comes to wills and estate planning, we have your best interests at heart, which is why we've written the below guide to explain the importance of wills and why they're absolutely relevant to all people, young and old.
What is a Will?
When someone passes away, their assets, possessions and liabilities form their 'estate'. A will is an important and legally binding document that sets out your wishes for what's to happen with your estate, including the care of your children once you pass away. Wills and estate planning are often pushed down the list of life's priorities, but life is unpredictable — dying is hard enough on the one's you leave behind, let alone how hard dying without a will can make it.
Often called 'succession planning', wills and estates require legal services, which is why as one of the Sunshine Coast's leading wills and estates lawyers, we're here to help with all of your succession matters.
What happens if you die without a will?
Dying without a valid will is called passing away 'intestate'. With no will to set out who's to look after or receive your estate, it usually falls upon your next of kin to assume this role. Unfortunately it's quite a process, as they can't sort out anything to do with your estate until they receive a grant of letters of administration on intestacy.
Without a will, usually your assets are passed to your next of kin — but of course, issues can arise here, too, depending on your personal and family situation.
Why young people should consider wills
A common belief among young people is that they don't need to worry about a will unless they have lots of assets, and this simply isn't true in most instances.
Being in a de facto relationship
During younger years is generally when we find ourselves exploring relationships and after a while, may even have a de facto spouse. If you're living together, share bills, are committed to one another and identify as being in a romantic relationship (without having yet been married), then the chances are that you are considered to be in a de facto relationship as far as the government is concerned. When one member of a de facto relationship passes away, not only is it incredibly heart-breaking for the remaining spouse, but it can be extremely stressful, particularly if you share children.
You would undoubtedly care for your partner while alive and presumably not want them to struggle after your death, so having a will not only provides comfort that they will set to benefit from your bank accounts, superannuation or belongings, but it saves them the uncertainty of trying to decide on how to treat your affairs and lets them know where they stand.
Estate law generally considers your spouse to be 'de-facto' if you've been together for two continuous years, or have had a child together, and treat you in much the same way as if you were married. Law firms often witness situations where de-facto couples may have a previous partner to whom they were married. Without finalising a divorce, dying intestate would mean that the ex-wife or husband could set to benefit from the estate, against the deceased's true wishes.
Considering buying a home
Home ownership is a big decision that comes with big responsibilities, one of which includes deciding on what's to happen to your home in the event that you pass away. A will allows you to safeguard your wishes around whether the home passes to the co-owner of your home (if you're buying with someone else) or if you want it dealt with via your will. How you own your property affects your estate differently.
Starting a family
With so many wonderfully dreamy aspects to starting a family, it's easy to ignore the hard hitting questions that feel more like a nightmare to imagine, such as "who will look after our baby if we both die?" While you might have nominated Godparents for your children (or, have talked about who will be your baby's Godparents), the role of a Godparent is more spiritual than legal. It might surprise you to learn that unless requested via your will, a Godparent actually has no legal rights, obligations nor responsibilities over that child. Moreso, if you were to both tragically pass and leave behind children under 18, without including guardianship in your will (or, passing away without a will in place) the decision of who will care for your kids until they're 18 falls to the Family Court.
In the event that one parent pre-deceases the other, most times the surviving parent automatically becomes the guardian of the child. This can be troublesome in instances of separation, if the surviving parent did not play an active role in the child's life.
Married or separated
Similar to being in a de-facto relationship, getting engaged to be married, being married or going through a martial separation all have an impact when it comes to your estate planning. For many of the same reasons as being in a de-facto relationship, young people who are being married should still consider how dying without a will may affect their husband or wife:
Bank accounts in just one name may be frozen upon the deceased's death and a listed executor of the will needs to approach the bank in how to deal with the funds.
Usually personally assets default straight to the surviving spouse, but what if you wanted personal items or a portion of your estate left to your siblings, parents or someone else?
Will your surviving spouse know your intentions?
And, of course, what happens if you are separating but have not yet finalised your divorce? Under Estate Law, your ex-husband or ex-wife would potentially be granted your estate in lieu of a will, leaving children, a new partner or your broader family left to seek legal representation in court to be provided for.
Holding superannuation
Your superannuation balance might not be substantial, but most superannuation funds come with a default level of life insurance within them. Unless you set a Binding Death Benefit Nomination with your super fund, that life insurance (and your superannuation investment balance) will form your estate. Without a will, this money (which could be a significant amount) may end up in the pocket of someone you don't want it to, or your family may need to go to court to see any of the money.
This might be particularly important if you are partnered or do have children, and your surviving spouse would rely on that money to make ends meet - especially if you were the sole breadwinner of the family.
Keep in mind: Some binding death nominations expire after a certain period of time (called 'lapsing' nominations) - usually after three years, at which point you need to renew your nominations again or your superannuation death benefits will form part of your estate.
Deceased estate administration
In Queensland, when a person passes away, someone is required to accept the legal responsibility of administering their estate, known as estate administration. Wills and estate lawyers know that unfortunately it's not just the elderly who depart us, and they also know that deceased estates don't always run smoothly. Sometimes, will disputes occur, which can complicate the matter even further.
Contested wills happen for a number of reasons. Common will disputes include when the grant of probate is contested (someone claims the will is not valid, or indeed the 'last' will and testament of the deceased person) where the construction of the will is being questioned, or by way of a family provision claim to the Supreme Court. A family provision application may be sought by a family member or dependant who feels that the will doesn't hold adequate provision for them, and that they may suffer hardship a result of deceased's assets going to other beneficiaries.
Do I need to see a lawyer for wills and estate planning?
You are able to establish a will without lawyers, however DIY will kits mean that you are left open to interpreting estate law, and are left open to potential holes that invalidate your will. Not only that, but administering an estate is a complicated job, let alone when you are left to do it without the help of a law firm in an extremely distressing time in your life. Satisfying the legal requirements of acting as an executor for an estate can feel totally overwhelming as estate administration is governed by common law and legislation. That is why having an estate law firm on your side is important — an estate lawyer can be immensely helpful in not just establishing wills planning, but also in aiding an executor to administer an estate or becoming the the administrator themselves.
Once you are resting in peace, let your family live in peace by getting expert advice from one of the leading wills and estate lawyers in South-East Queensland. With extensive experience in wills, estate administration and estate litigation, you can plan with confidence knowing that you are accessing expert legal advice from estate lawyers who strive for the best outcome — not just for you, but for those you'll leave behind.
Whether you're planning for the future or need legal advice through a difficult time, our team of compassionate estate lawyers are ready to help.
This article is general in nature and does not constitute legal advice. If you require legal advice in relation to your personal circumstances, you must formally engage our firm, or another firm to provide legal advice in relation to your matter. Bradley & Bray lawyers takes no responsibility for any use of the information provided in this article.
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