The A – Z of Family Law (E)

Estate Planning comes under a separate area of law, that is under the Succession Act. This area of law relates to your will, enduring power of attorney, and enduring guardianship documents. It also relates to updating your super binding death benefit nomination.

Why is it important to update your Will?

The reason it is important to update your will when you separate is, generally speaking, you don’t want your partner or your former partner to benefit from your estate and your estate is dictated according to your will. Technically speaking, if you don’t have a Will, pursuant to the laws of intestacy, your spouse will be able to receive the entirety of what you have.

What other documents should I update?

• Enduring Power of Attorney – is authorised to make decisions and sign documents on your behalf in relation to your legal and financial affairs.
• Enduring Guardianship – is authorised to make medical (including end of life decisions), health and lifestyle (including where you live) decisions if you lack capacity.
• Binding death benefit nomination in your super – Similar to your will, normally your superannuation has a trustee and they will have certain rules that govern who should get what. In the absence of nomination, or if you have an expired nomination, it often tends to flow on to your spouse.

Therefore, if you haven’t updated your Estate Planning documents, then your former partner or ex-spouse could make these decisions for you, if you were to lose capacity, permanently or temporarily and/or receive a benefit from your superannuation.

How do I make changes?

It is important to update your legal documents as soon as you meet with your family lawyer. Going through a separation and divorce is a life changing process and it usually requires a complete overhaul of your existing estate planning documents to ensure the right people are making decisions on your behalf and also have access to your assets. Your family lawyer will be able to assist you with this process.

If you would like to discuss your circumstances with our family law team, please feel free to reach out for a free 15 minute no obligation consultation.

Check out the other Letters in the A – Z of Family Law:

If you have any questions about the words we have covered in this article or would like us to explain another term please do not hesitate to contact us at Southern Waters Legal.