Where There’s a Will …

Without a will, your wealth and personal belongings may not automatically pass to your spouse, or to your children.  If you are married and you have children, including children from a previous relationship, then your spouse may only receive a portion of your estate.

Under Queensland laws the remainder of your estate will be divided amongst your spouse and all of your children, and even in some cases your grandchildren. Without a will, the exact division of your estate will be determined by rigid legislative rules, which depend on how many children you have and, in some cases, whether more than one person qualifies as your spouse. 

There are also additional legal claims available to ex-partners, step-children, and other dependants which can be made against your estate.  These various claims against your estate can often depend upon whether you have a will, and how well your will has been drafted. 

In more than one case, a person’s entire estate has been claimed by their ex-partner leaving their current partner with nothing, despite there already being a property settlement entered into after separation.

Often, when couples separate and then remarry, or have blended families, writing a will can be very difficult and is often put off indefinitely.  But without a will, it is very likely that your wealth and personal belongings will be dealt with very differently to what you had hoped.  

It just isn’t good enough to tell your family what you want to happen, or to leave it up to them.  You need to make a will. 

Here are some solutions that have worked for others, whose situations may be similar to your own.  

Children with an ex-partner, and a new spouse …

When a person has children from a previous relationship, and has re-partnered, the most appropriate solution often depends on the age of the children.  It is often not fair for all of your wealth to pass to your current spouse.  It also may not be fair, given your specific circumstances, to just divide your estate equally between your spouse and your children.  This may be because you and your new spouse have developed wealth between you, or because you and your ex-partner have already entered into a property settlement that reflected your children’s financial needs.  

Another option can be to make specific gifts for your children, of either specific assets (including family heirlooms) or even a sizeable cash gift from your estate, representing the value of your estate at the time you re-partnered, with the remainder of your estate then passing to your spouse to ensure their security, or being divided equitably between them.

Other options include granting your new spouse a ‘life interest’ in certain assets in your will.  This can ensure your spouse can continue to live in your home, or otherwise have the benefit of your estate, for their lifetime, but ultimately your estate will pass to your children.

It is also a good idea to get legal advice tailored to your specific circumstances, about how to structure joint assets and liabilities with your new partner, when you are having your will drafted.  For example, if you and your spouse buy your home as joint tenants, and open joint bank accounts, then your spouse can be assured that he or she will retain the home and your jointly controlled assets after your death.

Getting proper legal advice is important to avoid the perception of a ‘Cinderella’ outcome.  In the classic fairytale, the father dies unexpectedly and so all of his wealth passes to the (in this instance) evil step-mother and her spoilt children, leaving his own daughter penniless.   

Children, a new spouse, and a new baby … 

Blended or multiple families create a more complicated legal dilemma.  As above, Queensland laws stipulate exactly what is to happen to the estate. Unfortunately these rules are never tailored to each family’s unique circumstances.  Without a will, the law may also result in the sale of assets that the family would prefer to keep (like a family home). It is also likely that your family will need expensive legal assistance to sort things out.

Simply dividing the estate amongst all of the children may be fair, but this is not always the case.  If your children are of very different ages, or if some of your children can also expect an inheritance from your ex-partner (including wealth retained by your ex-partner as part of a property settlement at separation) a more nuanced approach may be necessary.

Solutions can include a specified cash gift from certain assets (for example superannuation, investments, or bank accounts) for your older children, with your remaining assets (for example your home, remaining cash and superannuation, furniture and other household items) being given to your current spouse and your younger children to ensure their needs are also met. 

Other solutions can simply include a percentage division of assets amongst all of your children (current and future), with the exclusion of certain newly-acquired assets (such as your home, car, furniture and furnishings) being given to your spouse.

Excuses we often make include “oh, I’m too young to make a will” and “I’ll do it later when I’m older, when I’m done having kids.”   While the chances of something unforeseen happening to you before then are incredibly small, it is still a good idea to have a properly drafted legal will now, just in case.  This is very likely to save your loved ones untold heartache, and should also save your family a lot of money in legal fees.  When you are older, or if your life and family circumstances change, you can change or make a new will as needed.

Rest assured, there is a way to provide for your unique family.