Pub­li­ca­tions

5 times to review your estate planning

As the hol­i­day sea­son approach­es and trav­el plans are made, many peo­ple con­sid­er it the right time to update their estate plan­ning. In addi­tion to review­ing your estate plan­ning before you trav­el, we take a look at five sig­nif­i­cant life events that should prompt you to review and update your estate planning.

Mar­riage

Mar­riage auto­mat­i­cal­ly revokes a will, unless it is made in con­tem­pla­tion of a par­tic­u­lar mar­riage. How­ev­er, if a will made before mar­riage appoints the spouse at the time of death as execu­tor, trustee, guardian or leaves a gift to that spouse, those parts of the will remain valid and the bal­ance of the will is revoked. If the tes­ta­tor did not make a new will after mar­riage, it could result in an estate that is part­ly dealt with under the will and part­ly dealt with on intes­ta­cy which could com­pli­cate estate administration. 

Mar­riage also revokes the appoint­ment of an endur­ing guardian, unless the per­son appoint­ed is the new spouse. 

Hav­ing children

Wel­com­ing a new child into your life may be a chaot­ic time but it is also a good time to review and update your estate planning. 

You may wish to update your will to ensure that your new child is pro­vid­ed for. Fail­ure to do so could result in that child mak­ing a fam­i­ly pro­vi­sion claim against your estate if they remain absent from your will.

You may also wish to update your pow­er of attor­ney to ensure that your attor­ney can pro­vide ben­e­fits for the rea­son­able liv­ing and med­ical expens­es of your new child. 

Changes to your assets

A sig­nif­i­cant change in your assets such as buy­ing or sell­ing the fam­i­ly home or estab­lish­ment of a fam­i­ly trust should prompt an update of your estate plan­ning. This will allow you to ensure that your estate is dis­trib­uted accord­ing to your wishes. 

For exam­ple, if a ben­e­fi­cia­ry of your will is only giv­en a spe­cif­ic prop­er­ty iden­ti­fied by address only and you sell that prop­er­ty, that ben­e­fi­cia­ry may receive noth­ing. This could leave your estate exposed to a fam­i­ly pro­vi­sion claim.

Divorce and separation

Unless the con­trary inten­tion appears in the will, the divorce or annul­ment of a mar­riage, auto­mat­i­cal­ly revokes parts of the will leav­ing a gift to the for­mer spouse or appoint­ing them as execu­tor, trustee or guardian. In New South Wales, this auto­mat­ic revo­ca­tion does not apply to the break­down of de fac­to or long term relationships.

It is also impor­tant to revoke any appoint­ment of you for­mer spouse or part­ner as your attor­ney or endur­ing guardian and to noti­fy them of the revo­ca­tion. Pow­ers of attor­ney and endur­ing guardians are pow­er­ful legal doc­u­ments and you should only appoint peo­ple that you trust to act in your best interest.

Named per­son unable or unwill­ing to act

Where it becomes appar­ent that a per­son named in your estate plan­ning doc­u­ments becomes unable or unwill­ing to act (eg under men­tal inca­pac­i­ty or has passed away), your doc­u­ments should be updat­ed to name new pri­ma­ry and sub­sti­tute appointees. 

This will reduce unnec­es­sary com­pli­ca­tions and costs with obtain­ing court or tri­bunal orders appoint­ing man­agers or guardians for you if all of your appointees are unwill­ing or unable to act. This would also make an appli­ca­tion for pro­bate simpler.

In sum­ma­ry

Your estate plan is not some­thing you can do once and for­get about for the rest of your life. All of your life’s sig­nif­i­cant events, both joy­ous and not so joy­ous ones, should prompt you to review and update your estate plan­ning to ensure your lat­est inten­tions are reflect­ed. Reg­u­lar updates to your estate plan­ning make it eas­i­er for those you have entrust­ed to look after your affairs when you are unable to do so yourself.