MAKE A WILL!

It is important to make a Will. A Will must be in writing and must meet legal requirements, for example being signed and witnessed in a particular way. If your Will isn't drawn up properly, it may not be valid. It is worth getting a lawyer to do your Will and it's not that expensive.

Once you have made a Will, keep it in a safe place and make sure someone else knows where it is. Your lawyer can usually hold it for you and give you a copy. It is possible for someone to challenge the Will if they believe that they haven't been left what they should have been. This is discussed below. If you are worried about this, or know that someone might claim to depend on you, tell your lawyer.

 

A Will is . . .

a legal document that appoints your executor(s) and sets out who gets your property when you die. This includes such things as real estate, money in bank accounts, personal possessions, and cars. You can change your Will as often as you like. It is a good idea to review and perhaps update your Will regularly to take account of changes in your life.

 

Who has the right to see a Will?

After you die, anyone named in your Will, your parents, children and next of kin (see ‘Relationships') have the right to see the Will and make a copy. A same-sex partner who is living with you at the time of your death has the right to see your Will and have a copy.

 

What to include in your Will:

    Executors - You need to name someone as ‘executor' (you can appoint more than one, and you can appoint an alternative in case the first can't or won't act). This can be anyone, including a ‘beneficiary' (someone you leave property to). The executor's job is to make sure your wishes are carried out. This means getting together the assets, paying off any debts, and then distributing the property to the beneficiaries, according to the terms of your Will. Property - It's important to include all your property - including real estate, money, shares, life insurance policies, superannuation benefits and personal property. It's impossible to list every asset, so it is usual to have a gift of ‘residuary estate', which is everything you have not specifically given. This is usually the largest part of the estate, if not the whole. Any asset not dealt with by the Will is dealt with under intestacy laws as if you died without a Will (see below). Children - If you have children under 18, you can appoint someone to be their guardian if you die. This is called a ‘testamentary guardian'. It is particularly important for a non-biological parent (see ‘Non-biological parent' under ‘Parents and children').

 

FUNERAL ARRANGEMENTS

You can specify in your Will what sort of funeral you want, but this is not legally binding. More importantly, it will have no effect if the funeral is held before the Will is read.

If you're going to include funeral details in your Will, make sure you tell someone, especially your executor, or set out in a letter how you want to be buried, and give it to them. That way your executor knows, without having to see the Will itself. The executor named in the Will has the right to make funeral arrangements. If there's no Will, then the next of kin has this right. If you have the right to arrange a funeral you can also decide where the person is buried. As the next of kin could be a ‘blood relative' and not a same-sex partner, this highlights the importance of making a Will naming your same-sex partner as executor - particularly if you think there will be any conflict with your other relatives.

 

IF THERE ISN'T A WILL

If someone dies without a valid Will, it is called an intestacy - the deceased person is said to have ‘died intestate'. Their assets will be divided up according to a legal formula in the Administration and Probate Act 1958 (Vic) (see ‘Who inherits if there's no Will', below).

 

Position of same-sex partner

Same-sex partners have primary inheritance rights. This only applies to a ‘domestic partner' who was living with the deceased person as a couple on a genuine domestic basis at the time of the death - but they must have been living together for at least two years before death. This applies to a death after 8 November 2001. A domestic partner who wasn't living with the deceased or who had been living with them for less than two years does not have primary inheritance rights, but has the option of a family provision claim (see below). Time spent in a hospital or nursing home does not break the period that the partners are considered to have been living together.

If the deceased person had no children . . .

their domestic partner inherits all their property - unless the deceased person also had a spouse, in which case the domestic partner may have to share their entitlement with the spouse (see ‘If there is a same-sex domestic partner AND a spouse', see below).

If the deceased person had children . . .

their domestic partner (and spouse if there is one, see below) inherits the first $100,000, the personal property and one-third of what's left (plus the right to acquire the deceased person's interest in their shared home within three months). The children inherit the remaining two-thirds in equal shares.

 

Property in joint names

If property is in joint names (as ‘joint tenants', see below), the survivor automatically inherits it, regardless of whether there's a Will. This applies also to joint bank accounts. Joint property is not subject to the intestacy rules.

Shared home owned solely by deceased

The surviving domestic partner has the right to acquire the deceased person's interest in their shared home at its value at the date of death. They have three months to decide. Their share in the rest of the estate will be reduced by the value of the property or they may have to pay money to the estate if there is a difference.

 

Position of children

The biological and adopted children of a person who dies without a Will have inheritance rights.

The question of who is a person's child for inheritance law can be complicated for same-sex relationships:

    anonymous sperm donor - the child has no right to inherit. known sperm donor who's on the birth certificate as the father - the child has inheritance rights. known sperm donor who's not on the birth certificate - the child has no inheritance rights under intestacy laws, but can make a family provision claim (see below) non-biological parent - the child has no inheritance rights under intestacy laws, but can make a family provision claim (see below).

If there is a same-sex domestic partner AND a spouse If the deceased person had a spouse, the same-sex domestic partner may have to share their partner entitlement with the spouse, depending on how long the domestic partner had been living with the deceased person. A divorced spouse is generally not entitled to anything - however, if a couple were separated, but not divorced, the separated spouse may inherit. The Administration and Probate Act sets out a table for how the estate will be shared:

 

This highlights the importance of putting your affairs in order by making a Will.

 

Period that domestic partner had lived with the deceased person before their death

less than 4 years

4 years or more, but less than 5 years

5 years or more, but less than 6 years

6 years or more

 

Spouse's entitlement

to partner share

two-thirds

half

one-third

none

 

Domestic partner's

entitlement to

partner share

one-third

half

two-thirds

all

 

Who inherits if there's no Will - in order of priority

 

1. Partner

Partner' means a domestic partner or spouse (see table, below).

 

2. Children

If there is a partner, the children get part of the estate, depending on its size (see below). If there is no partner, the children get equal shares in the whole estate. For who are considered ‘children', see below.

 

3. Other relatives

Grandchildren, parents, brothers and sisters, grandparents, nieces and nephews, uncles and aunts, great-grandparents, remoter next of kin, for example cousins, great-nephews, great-nieces.

 

3. No surviving relatives

If there are no surviving blood relatives, all the property goes to the state government.

 

FAMILY PROVISION - CHALLENGING A WILL OR INTESTACY

A Will can be challenged if it doesn't include someone ‘for whom the deceased had responsibility to make [adequate] provision'.

A same-sex partner has the same rights as any other family member or spouse to challenge a Will or apply to inherit if there is no Will and they don't fit the definition of ‘domestic partner' under the Administration and Probate Act (see above). There is no two-year qualifying period, but the length of the relationship will be a factor the court considers.

 

Claim by same-sex partner

It isn't essential to have been financially dependent on the deceased person to make a family provision claim. But to be successful, you would have to show that you had a moral and legal claim on the deceased for support, and that they have not properly provided for you, either during their life or in their Will, or if there is no Will, by the way the intestacy laws work.

The court would consider a number of factors, including:

    the nature and length of your relationship how many other people are also entitled to a share of the estate the financial resources of all those people the age of the applicant any physical or mental disability of the applicant the size of the estate.

The court is not concerned with creating equal shares - rather, it looks at whether the deceased had an obligation to provide some financial support to you.

There have been no recent or major court decisions about same-sex couples since these provisions became law in 1998. However, a same-sex partner who has been living with the deceased person is generally in a good position to make a claim.

 

Claim by children

Once children turn 18 there is not necessarily any obligation on the part of a parent to support them, but any child for whom the deceased had assumed some financial responsibility can apply. This means that the children of a known sperm donor and of a non-biological parent may be able to make a claim.

 

Claim by family

A relative of the deceased can challenge the Will. However, kinship alone is not enough for the claim to be successful - they would also have to show that the deceased ought to have made adequate provision for them in the Will. The family of a person who dies without a Will can also make a claim against a same-sex partner who has primary inheritance rights under the Administration and Probate Act.

 

What to do

To make a claim you need to apply to the Victorian Supreme Court. These claims can take a long time and are expensive. The legal costs usually come out of the estate. Get legal advice as soon as possible after the person's death if you are considering a claim, as it must be made within six months from when probate of the estate is granted. Doing this after your loved one dies is stressful and will inevitably reduce the amount of money in the estate. It is much better for people to make a Will.

DEATH COMPENSATION

If someone dies as a result of a work injury, accident or crime, their close family members and dependants may be able to claim compensation.

Whether a same-sex partner is eligible depends on the particular area of law - for some kinds of compensation you have to have been financially dependent on the person who has died. You may be able to make a common law claim for damages as well, e.g. if there has been negligence. A person whose same-sex partner has been killed as a result of a crime is eligible for financial assistance without showing financial dependence (see 'Violence' for contact details). To find out whether you are eligible for compensation, get legal advice.

SUPERANNUATION DEATH BENEFITS

An increasing number of people have large amounts tied up in superannuation funds. If you have superannuation, or wish to make a claim see ‘Superannuation' in the next chapter

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