With the festive season coming up, you might have a few lunches (or brunches, if we’re choosing – our head office is based in Melbourne after all) planned.

Maybe it’s with people you only see once a year, or maybe you’ll be with family or friends where you’ve discussed everything there is to discuss already, and want new topics to throw around. Well, we’re here to help, because what better way to break the ice, or to get the conversation going, than to start bringing up everyone’s legal affairs or asking each other legal questions?

Here are some common questions we get asked a lot that we have provided short answers to (**please see legal disclaimer below**), which we hope will help boost up that holiday spirit at your Christmas get together!

1. We’re just going to jump right into this one, as there’s never a nice way to bring it up. But a question we often get asked is: “What happens if I die without a Will?”
   • When a person dies without a Will, it’s called “dying intestate”. It means that they haven’t been able to appoint an executor or trustee to manage their estate (which is essentially any assets, liabilities or personal items they owned) and haven’t set out who their beneficiaries are (the person or people inheriting the estate).
   • This can make things difficult for the person’s family, and if there is no Will, the law then sets out who has the ability to administer the estate and who is entitled to receive the estate. Generally, the person who can administer the estate would be the person’s next of kin (for example, their surviving spouse or partner, or their adult children).
   • If there is no Will and a person has died intestate it may cause additional taxes and stamp duty for the estate too. This is why although putting a Will in place may not seem to be something urgent to be sorted out, if there is no Will or there isn’t a properly drafted and valid Will, then it can cause a headache for the surviving family members.
2. Another not so nice question we get asked a lot, but again may be useful to know: “If I separate/divorce my partner/spouse, will they get 50% of everything?”
   • Short answer: not necessarily. It’s important to keep in mind for family law property settlements, there are different types of assets to be looked at. There are hard assets such as houses, bank accounts, shares, household items, and then there are the superannuation entitlements held by the parties.
   • There are also many other considerations to be taken into account when working out an accurate property settlement division. Things such as each party’s income, earning capacity, health or if minor children are involved, who has more care of the kids, are all things to be considered. Answers to these questions can obviously change a lot depending on each family, and this is why it’s not often a resounding “yes!” as to whether a 50/50 split is appropriate.
   • Often, the division of the hard assets and the superannuation entitlements are different too. For example, if the end division between a couple for hard assets is 60/40 in favour of one party, the superannuation entitlements may still be divided 50/50. Just because math is fun, this would equate to:
     • if Party One had superannuation of $200,000.00 and Party Two had superannuation of $100,000.00, the 50/50 split would look like: $200,000.00 + $100,000.00 = $300,000.00 in total superannuation.
     • $300,000.00 divided into 2: $150,000.00.
     • Therefore, Party One and Party Two would each end up with $150,000.00 in their respective superannuation accounts at the finalisation of the property settlement.
3. Finally: “Can someone contest my Will?”
   • Short answer is yes, someone can contest your Will, but they need to be an eligible class of person who can make a claim on your estate. For example, if you had left out your partner/spouse, a child, or someone who was dependent on you, then they could make a claim.
   • However, they must also show they have a need for the money and that the claim is made by them because you did not provide for them adequately in your Will.
   • One last thing to keep in mind is that with contesting of Wills there is a generally a six month period from the Grant of Representation (more on this on another day) when a person can make a claim.

That’s it from us for now and we hope these questions help keep the conversation going!

(Disclaimer: the above is for general purposes only, and is not to be construed as actual legal advice. If you have legal questions where you require tailored legal advice, we recommend strongly speaking with a lawyer and obtaining proper, specific legal advice)