True or False? Wills Edition

There are plenty of common misconceptions about what happens to your assets when you die, from dramatic “Will Readings” to the belief that your spouse automatically receives everything if you die without a Will.

We’re putting some of the most common Will and Estate myths to the test. True or false?

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There’s a Reading of the Will when someone dies

False - We’ve all heard about “Will Readings”, like those seen in Knives Out or Succession. In Victoria, there is no formal Will Reading when someone dies. But, there are people who are eligible to have a copy of a Will if they ask.

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If I don’t have a Will, the Government gets my assets

True - If you don’t have a Will, there are laws that decide who your assets go to which are known as the Laws of Intestacy. If you have a family, this will typically be them. But, if you don’t have family who are eligible under the Laws of Intestacy, it can result in the government getting everything. This is why it’s incredibly important to have a Will so your assets can be paid to who you want.

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If I leave someone a small amount in my Will, they can’t challenge it

False - There is no set amount that you can include in your Will to stop someone challenging it.

For someone to challenge your Will, there’s a few things that they need to satisfy including:-

1. They must be an “eligible person” according to the law. This could be a spouse, partner, child or step child say;
2. They should have a financial need to receive more than what was left to them in your Will; and
3. You must have had a moral obligation to leave them something more.

This one’s complicated, so we strongly recommend you get advice on it.

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Getting married doesn’t affect my Will

False - Getting married can affect your Will and may even revoke it completely! If your marriage is “contemplated” in your Will, this may stop it from being revoked, but a Will must be carefully drafted to ensure this. This is most important if you want to leave your assets to the person you aren’t marrying or if you have a blended family.

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A homemade Will can be legally valid

True - BUT only if it satisfies the strict laws on how a Will is to be written and signed. If it doesn’t, it may not be valid or there may be a lengthy and expensive process to prove that it should be used as your Will. This is why it’s very important to ensure your Will is carefully and legally prepared.

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My executor can refuse to act after I die

True! Whilst rare, your Executor may need to or want to refuse to act. This is why it’s important to appoint a backup Executor. If all the named Executors cannot or choose not to act, then it’s typically one of your beneficiaries who gets to apply to be appointed in their place.

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A beneficiary can’t be executor

False - In fact, typically a beneficiary is the executor. It often makes sense for this to be the case because they have a vested interest in ensuring your Estate is looked after when you die. But, there are some circumstances where this may not be appropriate or entirely legal, for example if it can be considered a conflict of interest. It’s best to get legal advice on this to ensure your Will is properly drafted.

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Superannuation will be paid per my Will

False - Usually your superannuation is paid separately to your Will and there are many laws that impact this. For example, there are only certain people who can receive your superannuation directly from your superfund. If you want to pay it to someone else, then you must nominate it to your “Estate” and have a clause in your Will directing this.

Complicated? Yes, but we help you ensure it is done correctly.

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Keeping my will in a safe place is just as important as making a will?

True! We sometimes have family members tell us they can’t find a Will after their loved one has died, but they think one was made. This can result in a wild goose chase trying to find it, an old Will unknowingly being used because a more recent copy can’t be found, or if no copy is found, the Laws of Intestacy taking over (meaning you have no say on who your assets are given to).

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If I die without a Will, my spouse gets everything?

False - the Laws of Intestacy then decide who your assets are paid to, meaning your spouse doesn’t automatically get everything. Whilst they might, if you have children from a previous relationship, those children are also usually entitled to receive an inheritance.

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I can give my half of joint assets away in my Will

False - Joint assets often pass via the Laws of Survivorship meaning that the surviving owner(s) of those assets get the entirety of them upon your passing regardless of what your Will says. More rarely, your half of the assets pass via your Will, but this relies on the asset structure being set up correctly during your lifetime and this is often missed.

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Once I have a Will, I never need to update it

False - Whilst this rarely is the case, more often, it’s that your situation has changed, your beneficiaries situations have changed, or the laws have changed. All of this can warrant your Will needing to be updated.

We recommend that you review your Will at least every 3 years, but more regularly if your circumstances change (such as your assets or family structure).

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If you’re unsure whether your Will is still appropriate, or you need to make or update your Will, our Wills and Estates team can help. Contact us on 03 5623 5166 to make an appointment to discuss your circumstances and ensure your wishes are properly documented.