When navigating the emotional and legal complexities of separation or divorce in Queensland, Australia, one crucial step often overlooked is updating your will. Whether you are going through separation or have finalised your divorce, reviewing and potentially revising your will is essential to ensure your wishes are properly reflected in your estate planning.
How Does Separation Impact Your Will?
In Queensland, separation alone does not automatically change your will. Even if you and your spouse are no longer together, your existing will remains legally valid until you actively change it. If your current will names your former spouse as a beneficiary or executor, they will retain those roles unless you update the document. This can lead to unintended outcomes, such as your ex-partner inheriting a significant portion of your estate.
If you have separated but not yet divorced, here are some steps you might consider:
– Review and Update Beneficiaries: Decide whether you want to remove your former spouse as a beneficiary or executor. You may also want to include new beneficiaries, such as children or family members.
– Enduring Power of Attorney: If your former partner has been appointed under an enduring power of attorney, you may want to revoke and replace it to prevent them from making decisions about your finances or health care.
The Effect of Divorce on Your Will
Once your divorce is finalised, Queensland law takes some automatic actions regarding your will under the *Succession Act 1981 (Qld). Specifically:
– Any provisions that favour your former spouse, such as naming them as a beneficiary or executor, are automatically revoked.
– If your former spouse was named as a guardian for your children, this provision is also revoked.
However, it is important to note that while these provisions are automatically revoked upon divorce, the rest of your will remains valid. This can leave gaps in your estate plan, where you may not have a designated beneficiary or executor, leading to uncertainty about how your assets will be distributed.
Why You Should Update Your Will
Updating your will after a separation or divorce is essential to ensure that your estate is handled according to your current wishes. Some key reasons to revise your will include:
– Asset Distribution: After a separation or divorce, you may want to reconsider how your assets are divided, including updating gifts to children or other family members.
– Executor: You may need to appoint a new executor, someone you trust to handle your estate when you pass away.
– Superannuation: Superannuation does not automatically form part of your estate. However, reviewing your beneficiary nominations with your super fund is crucial to ensure your ex-spouse is removed if desired.
What Happens If You do not Update Your Will?
Failing to update your will after a separation or divorce can lead to complications:
– Intestacy: If you do not have a valid will, the intestacy laws will apply, meaning your assets will be distributed according to a statutory formula, which may not reflect your wishes.
– Unwanted Beneficiaries: If your will is not updated after separation, your former spouse may inherit assets or remain an executor, even if that is no longer your intention (until divorce nullifies those provisions).
Seeking Legal Advice
Family law and estate planning are closely connected, and the consequences of not updating your will can be significant. A solicitor experienced in both family law and wills can guide you through the process, ensuring your wishes are clearly documented and your estate is protected.
In Queensland, updating your will after separation or divorce is more than just a legal formality—it is an essential part of securing your future and that of your loved ones.
If you are going through a separation or divorce and need advice on updating your will, reach out to a qualified family law solicitor in Queensland for tailored assistance.
For expert legal assistance, contact our experienced lawyers at Bennett Carroll Solicitors. We have legal offices in Brisbane (Stafford and Upper Mount Gravatt), Gold Coast (Mermaid Beach) and Sunshine Coast (Kawana/Birtinya). Call us on 1300 334 566 today.
