When Should You Update Your Will?

Key Times to Review Your Will

1. Marriage or Entering a De Facto Relationship

A new relationship is an important time to review estate planning arrangements.

Marriage can affect the operation or validity of an existing Will, depending on the terms of the Will and the applicable law. Even where an existing Will is not revoked, it may no longer reflect the will-maker’s wishes or make appropriate provision for a spouse or partner.

De facto relationships can also have significant estate planning consequences, particularly where there are children from a previous relationship, jointly owned assets, superannuation interests or blended family arrangements.

2. Separation or Divorce

Separation and divorce can have substantial implications for estate planning.

Following a relationship breakdown, it is prudent to review:

• your Will;

• any enduring power of attorney;

• any appointment of enduring guardian or health decision-maker;

• any advance health directive or advance care planning document;

• superannuation death benefit nominations; and

• jointly held property and beneficiary arrangements.

Divorce may affect gifts or appointments under a Will, but separation alone may not. For that reason, estate planning documents should be reviewed promptly after a relationship breakdown to ensure they continue to reflect current intentions.

3. The Birth of a Child or Grandchild

The arrival of a child or grandchild often changes how a person wishes to provide for family members.

A Will review at this stage may involve considering:

• who should be appointed as guardian for minor children;

• how assets should be managed for children or young beneficiaries;

• whether testamentary trusts are appropriate;

• how superannuation and life insurance proceeds should be dealt with; and

• whether particular gifts or protections should be included for future generations.

A carefully prepared estate plan can provide structure, protection and certainty for young or vulnerable beneficiaries.

4. Buying or Selling Significant Assets

Major changes in asset ownership can affect how an estate is administered.

A Will should be reviewed after events such as:

• buying or selling real estate;

• acquiring investment properties;

• receiving an inheritance;

• selling a major asset;

• restructuring personal or family wealth;

• entering into significant loan or guarantee arrangements; or

• changing ownership of assets between individuals, companies, trusts or self-managed superannuation funds.

If a Will refers to assets that are no longer owned, or fails to account for newly acquired assets, the estate may not be distributed as intended.

5. Starting, Restructuring or Selling a Business

Business ownership often requires additional estate planning consideration.

A well-structured estate plan can assist with:

• protecting business interests;

• dealing with shares, units, partnership interests or trust interests;

• supporting business succession;

• reducing disruption for family members, co-owners and employees;

• managing control of business entities after death or incapacity; and

• coordinating the Will with company constitutions, trust deeds, partnership agreements and buy-sell arrangements.

For business owners, estate planning is not limited to the Will. Control of entities, succession of directorships, appointor roles, shareholder arrangements and insurance funding may all need to be considered.

6. Changes in Family Circumstances

Family circumstances are one of the most common reasons to review a Will.

A review may be appropriate where there is:

• remarriage or a blended family;

• estrangement from a family member;

• the death of an executor, beneficiary or guardian;

• a beneficiary experiencing financial difficulty;

• a beneficiary with disability or vulnerability;

• concerns about family provision claims;

• a change in the needs of children or dependants; or

• a desire to treat beneficiaries differently for particular reasons.

Clear and current estate planning documents can reduce the risk of uncertainty and disputes after death.

7. Changes to Superannuation or Insurance Arrangements

Superannuation does not automatically form part of an estate. It is often dealt with separately, depending on the fund rules and any death benefit nomination in place.

A Will review should therefore be accompanied by a review of:

• binding death benefit nominations;

• non-binding nominations;

• reversionary pension arrangements;

• life insurance held personally or through superannuation; and

• the tax consequences of superannuation death benefits.

If superannuation nominations are inconsistent with the Will or have expired, the overall estate plan may not operate as intended.

8. Changes in the Law

Estate planning laws, taxation rules, superannuation requirements and succession practices can change over time.

Even where personal circumstances remain the same, a periodic review helps ensure the Will and related documents remain effective, current and appropriate.

How Often Should You Review Your Will?

As a general guide, a Will and estate plan should be reviewed every three to five years, or sooner if a significant life event occurs.

A review does not always mean preparing an entirely new Will. In some cases, only minor changes are required. In other cases, a new Will or broader estate planning update may be necessary.

Estate Planning Documents to Review

A complete estate planning review may include:

• your Will;

• enduring power of attorney;

• appointment of enduring guardian or health decision-maker;

• advance health directive or advance care directive;

• superannuation death benefit nominations;

• life insurance arrangements;

• trust deeds;

• company constitutions;

• shareholder, partnership or unitholder agreements; and

• business succession documents.

These documents should work together as part of a coherent estate plan.

Peace of Mind for You and Your Family

Estate planning is not only about distributing assets. It is about protecting the people you care about, appointing the right decision-makers and providing certainty at a difficult time.

Keeping your Will up to date can help minimise stress, delay and disputes, and ensure your wishes are properly recorded.

How Spains Solicitors Can Help

Spains Solicitors assists individuals, families and business owners with Wills, estate planning and succession matters.

We can assist with:

• preparing and updating Wills;

• estate planning for blended families;

• testamentary trusts;

• enduring powers of attorney;

• enduring guardianship and health decision documents;

• superannuation death benefit nominations;

• business succession planning; and

• estate administration.