1.  Everything will go to my Spouse so I don’t need a Will

Wrong! This depends on the existence of other relatives. If you do not have a Will, other relatives may be entitled to benefit legally.

2.  My Superannuation death benefits will follow my Will

Not necessarily! It depends on the rules of your fund and the arrangements you have with your superannuation fund for payment of your death benefits.

3.  My Power of Attorney can divide up my Estate on my death

Wrong! A Power of Attorney enables someone to manage your financial affairs during your lifetime but the appointment of Power of Attorney dies with you. Your estate will be administered according to your Last Will or if you do not have one, then in accordance with the Laws of Intestacy. They are usually not what you would want as your estate distribution.

4.  If I give a person that I do not want to benefit from my estate a gift of $1.00 then they cannot contest my estate

Wrong! It may work in the movies but not in Australia. There are better ways to manage your estate planning.

5.  A Will is only for old people

Wrong! While a minor cannot usually make a Will without court approval, anyone over the age of 18 who owns any assets (or even if they don’t) should have a Will in place. A Will enables you to appoint an executor and to distribute any assets in your estate which could include superannuation death benefits and accidental death insurance, unpaid wages, digital assets etc.

6.  It will be valid if I put a clause in my Will stipulating that if anyone contests my Will, they will get nothing.

Wrong! These types of provisions can generally be void for public policy reasons.

7.  My family will agree on how to divide things up

Maybe, but this cannot be assured. No matter how functional your family is, conflicts can always arise. Having a Will will at least reflect your wishes.

8.  My Power of Attorney can make medical and/or lifestyle decisions for me if I can’t make them for myself.

Wrong! A Power of Attorney can make financial decisions. He or she cannot make medical, health or lifestyle decisions. You should have an Advanced Care Directive in place for these matters.

9.  I can gift my family trust assets in my Will

Wrong! Family trusts generally exist outside of your Will. You do not own those assets, the trust does. You may be able to transition control of the trusts through your Will but you cannot directly gift the assets of the trust.

10.  There is no point having a Will because anyone can contest it anyway

Wrong! There are of course significant benefits in having a Will. It is you having your say as to how you want your estate to be distributed and who you want to manage it. While a Will can be contested, it is not that simple.

Get professional advice – it is too important not to.

Joel Siepmann
Lawyer, Donlan Lawyers (a member of Nexus Law Group)
jds@nexuslawyers.com.au

This publication is © Nexus Law Group and is for general guidance only. Legal advice should be sought before taking action in relation to any specific issues.