Divorce Enduring Power of Attorney and Wills

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01 Jan

Divorce Enduring Power of Attorney and Wills

Separated Not Divorced: How Your Ex Can End Up With Your Estate

A breakdown of a relationship can be one of the hardest times in a person’s life. During this time, individuals often undergo immense changes to routine, living environments and lifestyle. In the midst of grieving, possibly moving to a new residence, organising your affairs and trying to get your life back on track, it’s easy to forget some of the smaller things that can have a drastic legal impact on your estate.

Remembering to update your enduring power of attorney and will to reflect your new situation is vitally important to protect your estate and assets, ensuring that in the unlikely event or accident, your property does not pass to your ex-partner.

Enduring Power of Attorney

An Enduring Power of Attorney or “EPA” is a document which provides another person with certain powers in the event you lose mental capacity to make decisions. Hypothetically, if you were involved in an accident where you suffered serious brain damage or were in a coma, you would likely lose the capacity to make financial and other important decisions. In this situation, if you signed an EPA which gave your now ex-partner power of attorney, they would be able to control your assets and make decisions on your behalf.

Wills and Intestacy

If you were party to a serious relationship or marriage and have a will, chances are this document reflects your wishes for your estate to be left with your ex-partner. Even if this will does not leave property to your ex-partner, it may allocate them to be an executor or “administrator” of the estate, which would essentially place them in charge of the distribution of property. Depending on your relationship with your ex-partner, this could create several unnecessary problems for your family or children. Consequently, it is important to construct a new will following the breakdown of a marriage or relationship to reflect your current position, ensuring your property is safeguarded.

For those thinking, “I don’t have a will, my ex won’t be able to do anything”, think again. In Queensland, the Uniform Civil Procedure Rules 1999 outline in the event a person becomes deceased without a valid will, the rules of intestacy will apply. In these events, the Court may grant Letters of Administration to a surviving spouse (which includes de facto partners) as a priority. This means, your ex-partner has priority to your property and assets in the event you pass away without a valid will. These intestacy rules specifically allocate $150,000.00 + household chattels + on-half or one- third of the estate’s residence to the spouse or de facto partner. This could mean you ex-partner receives a very large portion of your estate, even taking priority over your children.

If you are seeking advice regarding divorce and family law proceedings, please let us know if your enduring power of attorney or will requires updating as well. Call us today on 1800 662 535 or email your queries at reception@jamesnoblelaw.com.au to find out how our team of accredited family law specialists can finalize your family law matter and ensure your estate is protected.

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