Generally speaking, if Allan had a will, he would likely appoint his partner Sally as his executor and leave his entire estate to her. If Sally did not survive him, then he would likely appoint another adult such as a close friend, family member or his solicitor to act as his executor and would leave his entire estate to his executor to hold that on trust for his daughter Lexie, until she turned 18. Until Lexie turned 18 years old, that executor would have discretion as to whether or not to release some or all of those funds (depending on the terms of the Will) towards Lexie’s maintenance, education and advancement in life.
What happens when there is no Will?
This can have significant effects on the surviving partner if they are reliant on receiving funds from their partner, eg pay a mortgage.
What if Allan was still legally married and in a domestic partnership with Sally?
In Allan’s situation, if he also had a wife from whom he had not yet divorced, both his wife and Sally would be entitled to act as his Administrator. In fact, his wife could potentially lodge an application for Letters of Administration much earlier than Sally as she must wait for a Declaration from the Court that she was at the date of his death a domestic partner. The estate will also be divided such that Sally and the wife would be entitled to share the first $100,000 and they would share the remaining half, with the Public Trustee to hold Lexie’s half until she turns 18 years old. This opens up the possibility of a claim under the Inheritance (Family Provision) Act.
It is therefore important to review your family situation and see, if you fit within the above scenario, whether this reflects how you would like your estate to be dealt with when you pass away. It is important to review the terms of any Will that you have to ensure that they accurately reflect your current wishes and are in line with estate planning initiatives that you have put in place with respect to all of your assets including jointly owned assets as well as your superannuation which can be a major asset of one’s estate.
To find out more, please contact our Will and Estates specialists.
Written by Emma Godson, April 2018.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
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