Not making a Will means your estate will be distributed according to a fixed distribution scheme set out in law which is inflexible and does not account for your wishes or particular circumstances, above and beyond which family members survive you.

Superannuation does not automatically form part of your estate and is either distributed on your death according to your binding death benefit nomination (BDBN) or, if you haven’t completed a BDBN, then your super fund trustee has discretion to pay your super to your spouse, child/ren, a person with whom you have an interdependency relationship and/or your estate. If your super is paid to your estate, the money is paid in accordance with your Will, or if you die without a Will, according to the laws of intestacy.

Marriage has the effect of revoking a Will that is not made in contemplation of marriage. If you die with a revoked Will, then your estate passes to your next-of-kin according to the laws of intestacy, which in this scenario, is your spouse, but it’s not automatic.

If you lose capacity without having an enduring power of attorney document in place, it is too late for you to make this document, and it is not possible for your partner to make this document for you. Being a de facto or married couple alone gives you no special legal authority to deal with one another’s financial and personal matters – an application to VCAT is required and there is no guarantee that VCAT will appoint the person who applies.

It is only upon divorce that the gifts and appointments to a former spouse under a Will are revoked and a former spouse is treated as having predeceased the testator. Mere separation is not sufficient. The Will made during marriage in this scenario remains valid to appoint your estranged spouse as your executor and pass everything to your spouse.

You can only validly nominate a dependent under superannuation law to receive your super upon death, which does not include a parent, sister, or friend unless they qualify as a person with whom you have an interdependency relationship. Most of the time, this requires that you live together, have a close personal relationship, and one or both of you provide the other with financial, domestic and personal care and support. If you want to leave your super to someone who is not a valid dependent, you can nominate your legal personal representative so that your estate receives your superannuation. This will allow your superannuation to be distributed according to your Will.

An executor is entitled to up to 5% of the estate for their pains and trouble in their role. However, 5% is the maximum and is typically only granted by the Court for estates that are particularly large and/or complex.

An eligible claimant has 6 months from the date a legal personal representative obtains probate or letters of administration from the Court. Eligible claimants include but are not limited to a person’s spouse and children, as well as their grandchildren and household members if they were dependant on the person for their proper maintenance and support.