You might not consider yourself wealthy. You might still have a mortgage, be paying off the family car, juggling school fees, and trying to put a little extra into savings each month.
But if you've spent time building a life with your partner, raising children, buying a home, growing your superannuation, and accumulating financial commitments, you might have considerably more to think about than you realise.
Estate planning isn't reserved for people with investment properties, substantial share portfolios, or millions of dollars in the bank.
For many Queensland families, some of their most significant financial assets are their family home, superannuation, and life insurance. Add children, a mortgage, and the responsibility of providing for a family, and there are some important decisions to make.
So, do you need a Will if you don't have many assets? Yes. And the more important question might be whether your current arrangements would protect the people who depend on you.
Do I really have enough assets to need a Will?
One of the most common misconceptions about estate planning is that you need to be wealthy before it becomes worthwhile.
People often associate Wills with older generations, retirees, property investors, or people with substantial wealth. If you're still paying off your mortgage and building your financial position, it can feel like something to deal with later.
But consider what you've accumulated over the years.
You might have:
A family home with some amount in equity.
Life insurance through your superannuation funds.
Savings and investments.
Vehicles and other personal assets.
An interest in a family business or investment structure.
You might not have a million dollars sitting in a bank account, but the combined value of your financial interests could be significant.
More importantly, these assets may be supporting your family's current lifestyle and future financial security.
If something happened to you, what would happen to those assets? Who would receive them? Who would manage them? Would the arrangements you have in place achieve what you intend?
These are estate planning questions, regardless of how wealthy you consider yourself.
Your mortgage doesn't tell the whole story
A family with a $700,000 mortgage might assume there isn't much of an estate to worry about.
But looking at the mortgage in isolation doesn't tell you much about the family's overall financial position.
For example, imagine Sarah and Tom.
They are both 38, have two children aged 6 and 9, and own a home worth $1.1 million. They still owe $650,000 on their mortgage.
Between them, they have $1.2 million in superannuation, including life insurance cover. They also have savings, two cars, and household belongings.
They wouldn't necessarily describe themselves as wealthy. They are working parents with a mortgage, school expenses, and all the usual costs of raising a family.
But if something happened to both of them, there would be significant financial and practical matters for their family to deal with.
What happens to their home and outstanding mortgage?
Who receives their superannuation and life insurance?
Who will look after their children?
Who manages the children's inheritance?
How will the children's financial needs be provided for as they grow up?
Who has authority to administer their estate?
Their estate planning needs aren't determined by how much money they have in the bank today.
They are shaped by the family they've built, the assets and financial arrangements they have, and what they want to happen if they die or lose capacity.
What happens to your assets if you die without a Will?
If you die without a valid Will, you are said to have died intestate.
In Queensland, the distribution of your estate is governed by the intestacy provisions in our succession legislation (which is the Succession Act 1981 (Qld)).
These laws determine who is entitled to inherit based on your family relationships and circumstances when you die.
For example, the outcome can differ depending on whether you leave a spouse, children, or both. The rules also account for situations involving multiple spouses and include children from different relationships.
You don't get to choose the outcome yourself.
This can be particularly important if you have a blended family, want to provide for a stepchild, have separated from a former partner, or want someone outside your immediate family to benefit.
Even where the intestacy rules provide for your closest family members, the result may not reflect how you would have wanted your estate distributed.
There is also the practical question of who will administer your estate. Without a Will, an eligible person will generally need to apply for a grant of letters of administration before they can formally administer the estate where a grant is required.
Making a Will allows you to appoint an executor and provide legally effective instructions about the distribution of your estate.
You can read more about what happens when someone dies without a Will in Queensland.
Your superannuation and life insurance might be worth more than your estate
For many working parents, superannuation is one of their largest financial assets.
You might have accumulated hundreds of thousands of dollars without ever thinking of it as something that needs to be included in your estate planning.
The important distinction is that superannuation generally doesn't automatically form part of your estate.
When you die, your superannuation fund trustee is responsible for determining who receives your superannuation death benefit, subject to superannuation law and the fund's governing rules.
Your death benefit may include:
Your superannuation account balance.
Life insurance held through your superannuation fund.
Other amounts payable under the fund's rules.
You may be able to make a binding death benefit nomination directing your superannuation to an eligible beneficiary or your legal personal representative.
If your benefit is paid to your legal personal representative, it can then be administered as part of your estate under your Will.
The type of nomination available, who you can nominate, and the requirements for making a valid nomination depend on your superannuation fund and the applicable rules.
This is why your superannuation arrangements should be considered alongside your Will. Having a Will doesn't automatically determine who receives your superannuation.
You should also consider any life insurance policies held outside superannuation, as the policy ownership and beneficiary arrangements can affect how the proceeds are paid.
For a family with young children, these benefits can represent an important part of the financial provision available to the surviving family.
If you have children, your estate plan needs to consider more than inheritance
For parents, some of the most important estate planning decisions have very little to do with how much money they own.
They concern their children's future.
If you and your partner both die while your children are young, who would you want to care for them?
In Queensland, you can appoint a testamentary guardian for your children through your Will, subject to the relevant legal requirements and the circumstances at the time.
This is an opportunity to formally express who you would like to take responsibility for your children's care.
There are also financial decisions to consider.
If your children inherit money while they are young, who will manage it on their behalf? How should it be used to support their upbringing, education, health, and general wellbeing? At what age should they receive control of their inheritance?
These are questions worth considering while you can make your wishes known.
For some families, a testamentary discretionary trust may be appropriate.
A testamentary discretionary trust is established under your Will and comes into existence after your death. It can provide a structure for managing inherited assets for beneficiaries, including children.
Depending on how the trust is drafted, it can allow a trustee to manage and distribute income and capital for beneficiaries while providing greater flexibility over how and when they receive their inheritance.
It isn't necessary or suitable for every family. Whether it is appropriate depends on your financial position, family circumstances, and objectives, while taking into account the costs and responsibilities involved in establishing and administering the trust.
The important thing is to consider your children's care arrangements and financial arrangements together.
A guardian appointment in a Will is an important expression of your wishes, but it doesn't remove every legal consideration about who will care for your children. The surviving parent's position and other relevant family law considerations also need to be considered.
Do you know how your assets are owned?
One of the most important parts of estate planning is understanding which assets will be dealt with under your Will and which will pass outside your estate.
This is particularly relevant for couples who have accumulated property, savings, investments, and superannuation together.
For example:
Property owned jointly as joint tenants
If you own property with your partner as joint tenants, your interest will generally pass to the surviving joint owner by survivorship when you die. It doesn't ordinarily pass through your Will.
Property owned as tenants in common
If you own property as tenants in common, your share forms part of your estate and can generally be dealt with under your Will.
Superannuation
Superannuation death benefits are dealt with under superannuation law and the fund's rules. They don't automatically pass under your Will.
Family trusts
Assets owned by a family trust generally remain trust assets after your death. Your Will doesn't give away assets owned by the trust. The trust deed and control arrangements need to be considered.
Companies and business interests
Assets owned by a company belong to the company, not personally to its shareholders or directors. Your shares and any relevant control or succession arrangements need separate consideration.
These distinctions matter because you can have a carefully prepared Will that still doesn't achieve your intended outcome if the ownership of your assets and your other financial arrangements haven't been considered.
Your estate plan should reflect how your assets are held, not simply what appears on your personal asset list.
What happens if you lose capacity while you're still alive?
Estate planning also involves considering what happens if you are alive but unable to make decisions for yourself.
An unexpected accident, serious illness, or medical event could leave you unable to manage your finances or make personal and healthcare decisions.
If this happened, who would have legal authority to make decisions on your behalf?
In Queensland, there are two important documents to consider.
Enduring Power of Attorney
An Enduring Power of Attorney allows you to appoint someone you trust to make financial and/or personal and health decisions on your behalf, depending on the powers you grant and when they take effect.
For example, your attorney may need to manage your bank accounts, deal with financial institutions, pay your mortgage, or make decisions about your living arrangements if you lose capacity.
Without an appropriate Enduring Power of Attorney, an application to QCAT may be necessary for someone to be appointed to make certain decisions on your behalf.
Advance Health Directive
An Advance Health Directive allows you to give directions about your future healthcare and medical treatment in certain circumstances. It can also be used to appoint an attorney for health matters.
These documents address different situations from your Will. Your Will operates after your death, while your Enduring Power of Attorney and Advance Health Directive can be important during your lifetime.
For parents with young children and significant financial responsibilities, planning for incapacity deserves consideration alongside planning for death.
When should you review your estate plan?
Your financial position and family circumstances won't stay the same forever.
You might start with a relatively modest estate and gradually accumulate property, superannuation, investments, and other assets.
You might also have children, change jobs, start a business, separate from a partner, or enter a new relationship.
Your estate plan should be reviewed when your circumstances or wishes change.
Some important times to review it include:
Having a child or expanding your family.
Buying or selling property.
Getting married or entering a de facto relationship.
Separating or divorcing.
Starting, buying, or selling a business.
Establishing or changing a family trust.
Receiving an inheritance.
Changing your superannuation or insurance arrangements.
A change in your preferred executor, guardian, or attorney.
You don't need to wait until something significant happens to start planning. Having appropriate arrangements in place now gives you a foundation that can be reviewed as your life changes.
Do you need a basic Will or a more comprehensive estate plan?
The answer depends on your circumstances.
For example, a couple with young children, a family home, substantial superannuation, and life insurance may need to consider:
Who receives their estate and in what proportions.
Who will administer their estate.
Who they would like to care for their children.
Who will manage any inheritance their children receive.
Whether a testamentary discretionary trust is appropriate.
How their superannuation death benefits should be directed.
Whether their life insurance arrangements provide for their family's needs.
Who can make financial, personal, and healthcare decisions if either of them loses capacity.
These decisions aren't necessarily complicated individually. The challenge is making sure they work together and reflect what you want to achieve.
A Will is an important starting point. For families with more involved circumstances, having someone assess the bigger picture can help identify gaps and recommend appropriate arrangements.
Frequently asked questions
Do I need a Will if I have a mortgage?
Yes. Having a mortgage doesn't remove the need for a Will. Your property ownership, outstanding loan, life insurance, and other financial arrangements should be considered together when planning what happens if you die.
Do I need a Will if I have superannuation but no property?
Yes. Your superannuation may be one of your most significant financial assets. Although it generally doesn't automatically form part of your estate, your superannuation beneficiary nominations should be considered alongside your Will.
Does my partner automatically inherit everything if I die?
Not necessarily. The outcome depends on how your assets are owned, whether you have a valid Will, your relationship circumstances, and any applicable beneficiary arrangements. If you die without a Will, Queensland's intestacy laws determine who inherits your estate.
Do my children automatically receive my inheritance if both parents die?
The outcome depends on your Will or, if you die without one, the intestacy provisions. If your children inherit while they are young, arrangements may be needed for someone to manage their inheritance until they are legally entitled to receive it.
Should my partner and I have matching Wills?
Not necessarily. Couples often have similar intentions, but each person's Will should reflect their own assets, family circumstances, and wishes. Even where you intend to leave everything to each other, it is important to consider what happens if you both die.
Do I need a testamentary trust if I have young children?
Not automatically. A testamentary discretionary trust may be worth considering where you want to provide ongoing management and flexibility over how your children's inheritance is held and distributed. Whether it is appropriate depends on your circumstances and objectives.
Does my Will cover everything I own?
No. Some assets pass outside your estate, including certain jointly owned assets and superannuation death benefits. Assets held by companies and trusts are also subject to separate ownership and governing arrangements. Your estate plan should account for these arrangements.
Your family's future is worth planning for
You don't have to consider yourself wealthy to have something worth protecting.
If you've built a home, raised children, accumulated superannuation, established financial security, or taken on responsibility for the people you love, there are important decisions to make about what happens if you're no longer here to make them.
A properly prepared estate plan gives you the opportunity to make those decisions, put the appropriate legal arrangements in place, and give your family clearer direction for the future.
At Sun Wills & Estates, we help Queensland individuals and couples look at the bigger picture. We consider your family, assets, financial arrangements, and wishes before recommending an estate plan that reflects your circumstances.
You don't need to wait until you're wealthy to protect what you've worked hard to build.
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The information in this article is provided for general information and educational purposes only. It is not legal advice and should not be relied upon as a substitute for advice about your individual circumstances.
Estate planning and succession laws can be complex and may vary depending on your circumstances. The information in this article is current as at the date of publication and may change over time.
If you need advice about your own circumstances, you should obtain independent legal advice from a qualified lawyer.