As estate planning lawyers, we frequently help individuals and couples to ensure their home is either retained by the right people or sold so that funds can be distributed in accordance with their wishes after they pass away.

Take a closer look at some important considerations for Australians when it comes to property, mortgages, Wills and estate plans.

Estate planning when you co-own property

Some families find themselves in a situation where a person wants their share of a property to go to one or more individuals other than the co-owner.

The outcome of this situation will depend on whether the owners of the home are recognised as joint tenants or tenants in common.

Usually, if a joint tenant dies, the asset will automatically be transferred in full to the other joint tenant.

If the property was purchased by two people as tenants in common, the surviving person does not necessarily have the right to claim the full value of the home as their own.

If you don’t want your property to go to a joint owner after you pass away, you need to clarify this in your estate planning and work with your lawyer and accountant to make sure you are formally recognised as tenants in common.

A circumstance where you may wish to do this is if you have purchased a home with your second spouse and you have children from your first marriage. If you want some of the money from the home to go to your offspring when you die, talk to your partner and lawyers to make the right arrangements.

What happens to your mortgage after you die?

When you pass away, any debt you owe on your property (such as a mortgage) becomes a liability of your estate. This means the debt must be paid off before any proceeds from the sale of the property can be distributed to your beneficiaries.

It’s important to plan ahead to ensure that your estate has the resources to pay off outstanding debts. You may want to consider taking out life insurance or exploring other financial products that can help cover these costs. This will allow your beneficiaries to retain more of your assets.

How to split the proceeds of a property sale to multiple beneficiaries

If you plan to leave your property to multiple beneficiaries, it’s important to consider how the proceeds of a property sale will be distributed.

There are several options, including:

• Equal shares: This is the simplest option, where the proceeds are divided equally among all beneficiaries.
• Proportional shares: This option takes into account each beneficiary’s share of the property. For example, if one beneficiary owns 25% of the property and another owns 75%, the proceeds would be divided accordingly.
• Priority shares: This option prioritises certain beneficiaries over others. For example, you may choose to give a higher percentage of the proceeds to a beneficiary who has been caring for you in your final years.

Discuss these options with your beneficiaries and work with your lawyer to ensure your wishes are understood and documented so they can be carried out in a fair and legally binding manner.

Give yourself and your family peace of mind. Reach out to Legal Affairs Lounge to start preparing your estate plan today.

Disclaimer: The information contained in this news post is general in nature and is intended to provide a general summary only and should not be relied on as a substitute for professional advice. Whilst the information is considered to be true and correct at the date of publication, changes in circumstances after the time of publication may impact upon the accuracy of the information.

So, how do you update a Will after separation?

What is a Will?

Very briefly, a Will is a legal document that appoints a beneficiary or beneficiaries of your belongings and assets in the event of your death.

What if I don’t update my Will after separation?

Your Will is a legal and binding document, regardless of when you signed it. If you die before you update yours, the wishes that are legally documented will be used to distribute your assets, even if you have since changed your mind.

This can result in assets going to a person who is no longer part of your life.

How does divorce affect my Will?

Under Australian law, divorce affects a person’s Will in different ways depending on the state or territory you live in. In some circumstances, a divorce can completely nullify a Will, but this is not something you can rely on. Plus, in these cases, you could be left without a Will, which can cause its own complications.

In most states, though, a divorce will nullify any gifts or bequests appointed to a former spouse unless a judge believes it is still your wish that they should receive them.

Why update a Will after separation?

It is very important to note that while an official divorce can nullify parts of your Will, separation does not.

If you are separated but yet to be divorced, then your Will is still likely to be legally binding.

This is why you should move quickly.

Updating your Will

• Assets

The first step is to review your existing Will and identify any changes that need to be made. It’s very likely that you have appointed your former partner as an executor or beneficiary, so you need to remove them.

You also need to consider who will be responsible for distributing your assets after your death. If you have your former partner down as your executor, aim to remove them and appoint a new executor instead.

It is also important to review any trusts or other arrangements that you have in place. If you have a trust for the benefit of your former partner, you may need to modify or revoke it to ensure that your assets are properly distributed according to your wishes.

• Estate

In some cases, a separation or divorce can result in a complex estate planning situation. For example, if you have children from a previous marriage or relationship, you may need to consider how your money and assets will be distributed to ensure your children are adequately provided for. You may also need to consider how your assets will be distributed if you have a blended family.

If you have children under the age of 18, it is important to appoint a guardian in your Will. The guardian will be responsible for the care and well-being of your children if you pass away. If you have recently separated or divorced, you may need to review your choice of guardian and consider whether your former partner is still an appropriate choice.

Get support to update your Will after separation or divorce

Your needs and wishes should be priority as you go through a separation. When you work with an experienced lawyer, the process to update your Will and make sure it is legally binding should be straightforward.

Give yourself and your family peace of mind. Reach out to Legal Affairs Lounge to start preparing your Will today.

Disclaimer: The information contained in this news post is general in nature and is intended to provide a general summary only and should not be relied on as a substitute for legal advice. Whilst the information is considered to be true and correct at the date of publication, changes in circumstances after the time of publication may impact upon the accuracy of the information.

To prepare a thorough Will, it makes sense to work with an experienced professional. Before you get started, here are some of the things to think about.

What to include in a Will: Top questions to answer

Here are some of the basic things to consider to begin with:

Who will be Executor?

It is vital to have an executor for your Will.

The executor manages the conditions of your estate after you have passed. They can be a person or an organisation, and they are responsible for ensuring that the instructions in your Will is carried out.

Many people appoint executors from outside the family because it is a time-consuming and complicated job, and it can often cause emotional stress.

It is also wise to name a substitute executor who can step up if your first choice is unwilling or unable to carry out their duties.

What assets do you have and wish to pass on?

Your Will should have an extensive list identifying all your assets you wish to give to selected people.

The more comprehensive you are in naming all assets like properties, vehicles, shares, or valuables, the easier it will be for them to go to the right people.

It may take some time to get clear on what you own but you can prepare the list over a few weeks and update it as necessary. Think about your most sentimental belongings as well as valuable assets, sometimes these are more meaningful to people than big-ticket items.

Who are your beneficiaries?

Your Will must outline exactly who will receive the proceeds of your asset and estate.

Beneficiaries are not necessarily family members or friends. They can also be charitable organisations or other entities to which you intend to donate.

It is also a smart move to cover the possibility of a beneficiary dying before you do. If you have left a large sum to a sibling, for instance, but they pass before they are able to inherit, it’s wise to have a second person or entity in mind.

Who will get custody of your children and pets?

Parents or guardians of children who are still under 18 need to name new guardians in the event of their passing. Failing to do so may result in the children going into government care.

While not as serious, the care of any pets should also be covered in your Will to ensure that they are taken care of.

Should you establish a trust?

If you have younger children or care for someone with a disability, you might also consider establishing a trust that will assist them as they go through life. A professional Wills and Estate lawyer can work with your accountant to set this up.

What will your funeral arrangements be?

Your Will should outline your desired funeral arrangements, whether you wish to be cremated or buried, whether you wish for a religious or secular service and other such details.

This way, your family and friends know they are sending you off in the manner that you desired. It makes the process of farewelling you much easier.

How will people access your accounts and digital profiles?

In this day and age, it is helpful to have a record of all your digital accounts and profiles so they can be closed and taken care of after your death.

Who can help to formalise your Will?

Wills are complicated and legally binding.

Failing to seek professional assistance can cause problems when it comes to the fulfilment of your wishes.

It can be very easy to overlook small details or miss sections in the paperwork that make all the difference.

The last thing you want is your beneficiaries squabbling over the details of your last wishes. Have your Will prepared or reviewed by a skilled professional and you’ll have peace of mind that it is legally binding.

Give yourself and your family peace of mind. Reach out to Legal Affairs Lounge to start preparing your Will today.

Disclaimer: The information contained in this news post is general in nature and is intended to provide a general summary only and should not be relied on as a substitute for legal advice. Whilst the information is considered to be true and correct at the date of publication, changes in circumstances after the time of publication may impact upon the accuracy of the information.