How to leave your property if you are married
When you are making your Quick Laws Online Will, one of the crucial decisions you need to make is who you would like to leave your property to. In this section of the form, you specify who gets what upon your death. It's up to you to decide who you would like to receive your property.
Make a list of your property: optional
Before you start, you may find it helpful to make a list of your assets and debts. You can complete our Property Worksheet to make a list of all your property. This is optional. You can give specific items and amounts to people in your Will but each of your individual assets are not listed in your Will.
Property not covered by a Will
In general, some property may not covered by a Will. For example:
- Jointly owned assets: the reason is that title to the asset automatically passes to the second person when the first person passes away.
- Superannuation: the rules governing most superannuation funds provide that the fund has the choice to decide where it pays your accumulated superannuation benefits, which includes paying it to your estate or to the beneficiary you have nominated. It's advisable to check this with your superannuation fund.
- Life insurance policies: as with superannuation, unless there is a specific person nominated as the beneficiary, the money will be paid to your estate and will be subject to your Will. If there is a specific nomination, then the money will be paid directly to that person.
- Capital Gains Tax (CGT): if you have significant assets, you should consider the effect of CGT on your estate. In general terms, when an Executor or Beneficiary disposes of an asset received from a deceased estate, they may have to pay CGT.
Leaving Property to Your Spouse or Partner
It's up to you to decide who you would like to leave your property to in your Will. If you are single, this is a straight-forward matter. If you are in some type of relationship, whether you are married or have a de facto partner, the rules are little more complex.
In Australia, a spouse or de facto partner will be able to claim a substantial part of your property upon your death, depending on the laws of your state or territory.
If you are married or in a de facto relationship but you do not want to leave at least half of your property to your spouse or partner, then you should seek legal advice from a qualified person.
In the online form, when asked who you want to leave your property to, there are 3 options:
- Leave everything to my spouse/partner: this means that your spouse or partner will receive everything, your entire estate, with no exceptions. You do not want to name any back-up beneficiaries in the event your spouse/partner does not survive you. You do not want to leave any specific gifts.
- Leave everything to my spouse/partner, with exceptions: you can choose this option when you want your spouse/partner to receive all of your property, however, you would like to provide for other beneficiaries in the event your spouse does not survive you. For example, you want to leave everything to your spouse and if your spouse does not survive you, then you want your property to be divided equally between all of your children. You can choose to leave your property to any number of back-up beneficiaries in the event your spouse and children and/or grandchildren do not survive you.
- Leave it another way: if you do not want to provide for your spouse to receive all of your property or you want to divide your property in a particular way, then you should choose this option.
Leaving Property to Your Children and Grandchildren
If a person has children and/or grandchildren, it's common to want to include them in their Will. If you would like to give your property to be divided equally between all of your children, and then any grandchildren, this can be provided for in the questionnaire.
If you want to leave your property to your children/grandchildren if your spouse does not survive you, then when asked the question 'How do you want to leave your property to if your spouse does not survive you?' you should answer 'My children/grandchildren.'
If you choose the above option and you want your grandchildren take the share that your children would otherwise have taken, all you have to do is answer is 'Yes' to having grandchildren.
If you indicate that you have grandchildren, your Will provides for any grandchildren that have not yet arrived, but may arrive in the future. This way, you do not need to update your Will every time there is a new addition to the family.
If you then name any further beneficiaries in the following sections, then those beneficiaries will only receive your property in the event your spouse/partner and no children or grandchildren survive you.
If you have children that are under the age of 18 years, then any property left to them in your Will is held in trust for them by your Executor until that child reaches the age of 18 years. This is called the 'vesting age.'
If you would like to change the age that a child can receive your property upon your death, for example, to 21 years of age, then it's best to seek formal legal advice from a qualified person.
Excluding specific persons
If you want to exclude a specific person from receiving any of your property in your Will, then its best to seek legal advice. If the person you want to exclude is a spouse or family member, then they may have a claim to your property upon your death. Therefore, you may need to give reasons why you want want to exclude them in your Will. In these circumstances, it's best to seek legal advice from a qualified person.