Why Same Sex Couples Need a Will
A will is a must to ensure that when you pass away, the most important people in your life are cared for. This is the only way you can be certain that your final wishes are clear.
Many people make the assumption that when you die, your partner or next of kin will inherit your estate. However, this is not always the case, unless you have specifically set out your wishes in your will.
Preparing a will is on many people’s to-do lists, yet many Australians die without a will each year. If you want to have control over what becomes of your assets after your death, creating a will is imperative. Assets to consider may include your house, your car, your share or investment portfolio. Other valuable items such as art pieces and your cherished items which may hold great personal significance to you and form the legacy of your story.
The future of these possessions can also be protected in your will.
What happens if you die without a will?
The Australian Securities and Investments Commission estimates that almost half of all Australians die without a will (that means that they have ‘died intestate’).
This means that your assets, (i.e. your house or car) would be distributed in a standard matter in accordance with the Administration & Probate Act 1958 and Relationships Act 2008. If you die intestate, your estate could be allocated to your next of kin and members of your family in a way you did not intend. If you have not made a specific gift in your will, cherished belongings may be lost (and the stories that go along with them may be left untold).
To ensure that your assets are distributed in accordance with your intentions, it is imperative that you record your wishes in your will.
Your will is not only a record of how you want your assets dealt with. A will may also contain important information about your funeral and burial wishes and guardianship arrangements for children.
A will is the only legally binding document that is accepted by law as an individual’s final wishes. The terms of the will only come into play upon the death of the individual.
Before the executor named in the will can deal with the assets and liabilities of the estate, the will must be validated by the Supreme Court by obtaining a grant of probate. If you die without a valid will, the Court will issue a grant of letters of administration to allow an administrator to deal with the estate.
Same sex relationships
As at April 2016, same sex marriages performed overseas are not legally recognised in Australia. Victorian law stipulates that a will becomes invalid upon marriage, unless the will is specifically made in contemplation of marriage.
However, just because same sex marriages are not legally recognised in Australia, there are no limitations on same sex couples preparing a will that leaves part/all of their estate to their spouse.
In most instances, if you are in a de facto relationship and die intestate, your partner will be entitled to all or part of your estate. If there are doubts about the relationship status of two individuals, the Domestic Relationship Register (Victorian Registry of Births, Deaths and Marriages) can be useful proof.
From 1 September 2016, same sex couples will be allowed to adopt children. This will have implications, on how an estate is distributed if someone dies intestate; as children adopted by same-sex couples will be classified as their children (and not step or foster children). As such, an adopted child may be entitled to receive a portion of the estate and have the right to challenge a will in Court to obtain a higher share.
Be sure to record your wishes in your will if you want peace of mind that your partner and loved ones (including pets!) are adequately provided for.
Options for preparing your will
There are two options for preparing your will, depending on the complexity of your personal circumstances and how comfortable you are with doing it yourself:
- Consult a professional will writer
If your situation is complex or if you have detailed questions about estate planning, we recommend that you meet with a lawyer or professional will writer to discuss your specific circumstances.
If you are in Victoria, you can book an appointment online with a qualified and experienced State Trustees will writer. If you are in another state, you may wish to consult your local public trustees or your local lawyer. When you meet with a will writer, you should come prepared with a list of questions if you have specific concerns.
- Buy a legal will kit
If you are someone with straightforward circumstances you feel confident enough to create your own will, you can purchase a legal will kit and create the document yourself according to guidelines.
State Trustees sells will kits online, which are legally valid Australia wide. The will kit has been developed by will writing professionals and comes with a will template, detailed guidelines for preparation and step by step instructions. It is designed to make the will writing process simple quick and convenient in instances where your circumstances are uncomplicated. It is also suitable for same sex couples.
Irrespective of your choice, there are important things that you should consider before writing your will.
Consider the need for a power of attorney
When you make your will, you can also consider preparing a power of attorney. An enduring power of attorney allows you to appoint another person to make decisions for you when you are no longer able to make decisions yourself. This can be a trusted relative, a friend or an organisation such as State Trustees. It is important to have made your wishes clear in this regard, just in case.
You can prepare an enduring power of attorney when you prepare your will. If you’re creating your will with the assistance of a will writer you can request that your enduring power of attorney document be prepared at the same time. Alternatively, you can buy your bundle Will Kit and Power of Attorney Kit online and at your local Australia Post (Victoria only).
Talking about your will
Thinking about the end of your life is an emotional and tricky subject to contemplate. And that’s even before you’ve thought about discussing it with your family and loved ones!
During the process of planning for and preparing your will, share your plans with those closest to you. This will ensure that there is a clear understanding of your wishes. For example, if someone dies suddenly, the burial may occur before their will is found and read. As such, you may wish to make certain details known to those close to you, such as your funeral preferences.
You should give some thought to who will be the executor of your will. You can elect either an individual or a trustee company such as State Trustees to fulfil the role. It is important to understand that the task of administering an estate is a significant responsibility and requires your executor to have a significant amount of time, commercial consideration and decision making skills.
If you want to choose a friend or family member, we encourage you speak with the relevant person to ensure that they’re aware of the nomination and their corresponding duties when the time comes. You can learn more about how to choose an executor and the duties involved here.
You should consider discussing your will with your loved ones. After all, it is one of the most important documents you’ll ever create in your life.
Storing your will
It is important that you advise someone close to you where you’ve stored your will. If you are in Victoria, you should consider storing your will at the Victorian Will Bank.
Keeping your will up to date
When significant changes occur in your life, be sure to review your will. If you have purchased a new asset, moved to a new city, overseas, entered into a domestic relationship, plan to have or adopted children, be sure to review your will. Doing so, will help ensure that your will represents your most recent and valued wishes, as the circumstances in your life change.
When you rewrite your will, your latest will, will only revoke a former will when the new will states so. This can be in the form of a statement at the beginning of the will revoking any past wills.
In closing, it doesn’t matter how straightforward you believe your circumstances are. A will is the only way to ensure that your final wishes have been made clear.
State Trustees is available to assist you in preparing your will. Read more about State Trustees will options here or phone us on 03 9667 6444 or outside Melbourne 1300 138 672.