What is a Will?
A Will is a declaration incorporated in a document by which a person (the testator) expresses how they would like their assets to be divided and distributed when they die. It also nominates the person who they would like to assume responsibility for undertaking that process on their behalf (the executor).
Why is it important that you make a Will?
There are a number of reasons why you should have a properly written, current and legal Will.
If it is clearly written, signed, witnessed and current you can ensure:
- that the correct family members or people you wish to share in your estate are provided for after your death;
- that your assets are distributed as you want them to be;
- disagreements among family or people who expect to benefit from your estate are eliminated;
- that someone you know and trust takes on the responsibility for carrying out your wishes and understands how you want your assets to be managed;
- your wishes are able to be carried out in a timely manner.
What if you don’t have a Will and you die?
If you die without leaving a valid Will then how your assets are distributed is determined strictly in accordance with a formula prescribed in state legislation. In most cases that will result in only your closest relatives sharing in the assets you leave behind and:
- the Court determines who is to be granted the right to administer your estate. This could be someone (including a trustee organisation) that you would not otherwise want to look after your affairs;
- the total value of your assets, after paying your debts and expenses of administration, will only be shared by your living relatives as defined in the state legislation;
- you have no say at all in who will benefit from your estate;
- in determining your beneficiaries when no Will is left, no consideration is given for, nor any distinction made between, beneficiaries who are able or those who may be under a disability;
- costs of administration can be significantly higher and it is likely that your estate may take a lot longer to be finalised.
How do you make a Will?
Anyone over the age of 18 and having legal capacity can make a Will. A person under the age of 18 and married or who obtains the formal consent of the Court can also make a Will.
What is “legal capacity”?
Legal capacity to make a Will means that you;
- are over the age of 18;
- are of sound mind;
- understand what a Will is and what it does, what property you own, the people who are important to you, and also the likelihood of any claims being made against the estate from someone who you may consider you have no obligation to make provision for in your Will.
Other matters you should consider
In making or updating a Will you should also consider;
- any change in your marital status (subsequent marriage will in most cases revoke any existing Will and, in Victoria, NSW, Queensland, South Australia, Tasmania, NT and ACT, divorce will also bring about a partial or qualified revocation).
- the purchase or disposal of any significant asset such as a property or a business;
- any change in the number children you have;
- the need to change the person you have previously nominated as the executor of your Will;
- whether to change the beneficiaries you have identified in your Will.
As a consequence it is advisable to review your requirements and any existing Will regularly. In this respect subject to your having legal capacity and to any contractual obligation to leave property by Will, you may revoke a Will at any time and therefore it does not necessarily represent a commitment to the distribution contained in it.
Why use us when writing your Will?
Estate law can be complicated. The 21st century family and the often blended nature of the relationships between its members are also complex. We can explain in layman’s terms what situations may arise in relation to your particular circumstances so that you can navigate that complexity and ensure that your wishes are carried out in the way you intend and that you have a clear and legally binding Will.
By choosing our professional help you can have peace of mind knowing that your Will accurately reflects your wishes and that the decision making process behind those wishes is based on sound advice, guidance and experience.
If you would like us to assist you in advising you and preparing a Will you can Contact Us or complete and return the Will Checklist and we will be in touch with you.