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The general guideline is to review your estate plan every three to five years. But it’s also crucial to update your estate plan after major life events such as marriage, divorce, the birth or adoption of a child, a significant change in financial status or business interests, or the death of a named beneficiary or Executor. Changes in tax laws may also warrant a review and update of your estate planning documents.

There are various ways to incorporate charitable giving into your estate plan. You can specify a certain sum of money or a percentage of your estate to go to a charity of your choice directly in your Will. Alternatively, you can set up a Charitable Trust that can provide for both your loved ones and chosen charities, often with tax benefits. Charitable remainder Trusts and donor-advised funds are other popular options for incorporating philanthropy into your estate plan. An estate planning lawyer can provide tailored advice based on your particular circumstances and goals to ensure the right strategies are in place to facilitate this.

Digital assets include everything from social media accounts and digital photographs to online bank accounts and cryptocurrency. To protect these, you should first make an inventory of all your digital assets and their corresponding passwords. Next, specify how you want these assets to be managed in your estate plan. You can name a “digital Executor” who will be responsible for carrying out your wishes regarding these assets. Keep in mind that laws surrounding digital assets are still evolving, so it’s crucial to consult with a lawyer to make sure you comply with current legislation.

To reduce the likelihood of your Will being contested or an estate dispute arising, getting the right advice from legal experts in the field is critical to ensure clarity and thoroughness in your estate planning documents are key. Here are some steps you can take:

1. Be as specific as possible in your Will to avoid ambiguities.
2. Clearly state your reasons for how you are distributing your assets, especially if it’s unequal among beneficiaries.
3. Make sure your Will is properly witnessed and notarized, following all legal formalities.
4. Keep your beneficiaries informed about the general structure of your estate plan to manage expectations.
5. Update your Will regularly to reflect any changes in your situation or wishes.
6. Engaging the right succession and estate lawyer to ensure your wishes are best laid out and all the right documentation is in place.

Consult our skilled estate planning team to help you navigate these issues effectively.

In Western Australia, you can use your Will to appoint a guardian for your children, but this usually only takes effect if you’re the last surviving parent, and lasts until the child turns 18. The other surviving parent generally assumes guardianship regardless of your Will’s provisions. The Family Court has the final say in disputes or if no guardian is appointed. When drafting your Will, consider practical factors like the guardian’s relationship with the child, their personal circumstances, and their relationship with your Will’s Executor. Your Will serves as a strong tool to record your wishes, especially as improper guardianship can lead to financial disputes and instability for your children.

As a single parent, you can nominate anyone as the legal guardian for your minor children in your Will, but the Family Court has the final say and will act in the child’s best interests. Even a non-involved parent can apply for custody after your death and is likely to be granted it, barring extreme circumstances.

To strengthen your case for your chosen guardian, you can establish a ‘fighting fund’ in your Will. To protect your children’s inheritance, it’s advisable to have a well-drafted Will with a Trust in place. By selecting trustworthy Trustees, you can ensure your children’s financial well-being, even if the other parent gains custody.

Superannuation (Super) is often misunderstood in estate planning even though it’s a significant asset for many. Super is not covered by your Will; instead, it’s governed by your Super Fund Trust Deed and the Superannuation Industry Supervision Act (SIS Act). The fund’s Trustee decides who receives your Super upon your death, based on a limited set of options: spouse, de facto spouse, child, someone in an ‘interdependency relationship,’ or your Legal Personal Representative (your Executor). Some funds allow Binding Nominations, which mandate the Trustee to follow your instructions, but these sometimes lapse after three years, unless your Super Fund allows you to make Non-Lapsing Binding Nominations.

A good estate planning lawyer can help navigate this complexity to ensure your Super goes to the intended recipient. Additionally, many people unknowingly have a life insurance policy tied to their Super, which could be worth a substantial sum, making it critical to consider in estate planning.
READ MORE on what happens to your Super when you die.

You can hold life insurance either through your Super, or through a separate policy you have  taken out Life insurance should be a part of your estate planning discussion, and how it is managed depends on whether it’s held through your Super or as a separate personal policy. If it’s through your Super, it is governed by the same rules as your Superannuation.

However, if you hold a separate policy, the proceeds will either go to your estate and be distributed according to your Will or intestacy laws, or directly to a named beneficiary on the policy. Naming a beneficiary can have complications, such as making the funds available to creditors if the beneficiary is bankrupt, or releasing a large sum to children at the age of 18. To mitigate such issues, you can use a Testamentary Trust within your Will to ensure funds are allocated appropriately, with protections in place.

Major life events like marriage and divorce can nullify your existing Will, although there are exceptions if your Will specifically accounts for these events. During the process of separation, it’s essential to have a current Will, as dying without one could mean your separated-but-not-yet-divorced spouse inherits a large portion of your estate.

The Administration Act 1903 (WA) sets down a formula of what happens to your assets if you die without a Will and your spouse could receive the first $705,000 plus a share of the remaining estate and if you have children, then $472,000 plus a third of the remainder. If you’ve separated and divided your assets but haven’t divorced, your old Will, which may leave everything to your estranged spouse, still holds. Therefore, it’s critical to update your Will as soon as possible after separating, rather than waiting for the divorce to finalise, as your preferences for asset distribution are likely to change.

READ MORE on how separation can impact your estate planning. 

Ex-spouses can claim against your estate. But the good news is, they can only do so if they were being maintained by you, or were entitled to be maintained. So if you have settled up your financial affairs in Family Court property orders, and you are not paying spousal maintenance, then your ex-spouse should have no claim.

Be careful not to confuse spousal maintenance with child maintenance – they are not the same thing, and just because you are paying child maintenance to the ex-spouse, that is not spousal maintenance and does not give rise to a claim by the ex-spouse. Of course, if you don’t make proper provision for the kids who are receiving maintenance from you, they may claim against your estate (and will likely be successful) and there is every chance that the person who will run that claim on their behalf would be your ex-spouse.

READ MORE on whether an ex partner of the deceased can contest a Will.