The information provided below is general in nature and should not be relied upon legal advice. You should call 03 5445 1000 and speak to a lawyer at OFRM about your particular circumstances.

Why make a will on separation

Why make a will on separation

So, your relationship has ended. Why should you now update your will?

  • If you have children it is extremely important to make a new will.
  • If you are married and do not have a will, even though you might be separated, your spouse will automatically receive all of your personal chattels, plus the first $100,000 of your estate. If your estate exceeds $100,000 then your spouse will receive one third of the excess and your children will receive two thirds of the excess.

    • However if you make a will, then your assets are distributed in accordance with your wishes.
  • If you do not have a will and if you are not married, but separate and have children, then all of your assets will pass to your children, but the person entitled to administer your estate will be the parent of your child or children.
    • This default position might be acceptable, but it is also quite likely that you would rather that other people can be in charge of looking after the funds for your children until they reach an appropriate age.
  • Although you might not consider that you have many assets, it is quite surprising when you actually attempt to list the value of the items that you own.

    • If you have a will, then it is usually very easy for your executor to administer your estate, particularly if the estate is small. If there is no will, then the costs of administering your estate become far more expensive and, of course, the statutory formula for distribution of your estate may not be ideal.
  • If you have superannuation, you probably need to ensure that your superannuation benefit is not paid to your estranged spouse. Separation does not make your spouse ineligible to claim your superannuation benefit. You should make a binding death benefit nomination with your superannuation fund and you should also make new provision in your will.
  • For a lot of people, the idea of having to make a will is challenging, particularly if there are other stressful issues in your life. However, after talking to an experienced lawyer, most people can create a will which accurately reflects their wishes and, in most cases, is relatively straightforward. A lot of people are then extremely relieved to have that important issue resolved.
  • You might think you are better to delay making a will until your family law property settlement is finalised. Our experience is that you are better to make a new will soon after separating and update it, if required, when your property settlement is finalised

Most people put off making a will, because they are waiting for an event which will prompt them to complete the task. Entering into a relationship would be a good time to make a will. Ending a relationship is absolutely the best time to make a new will or update an existing will.