What is a Will?
A Will is a special written legal document that attracts a special format in order to remove any ambiguity and ensure that your wishes are carried out after death. Essentially it facilitates control over who will receive your assets and belongings after you die as well as who will supervise the distribution and management of your estate. It also allows you to stipulate a guardian for your children.
Should I make a Will?
Anyone over 18 years of age should have a Will. It is the only way you can ensure that your dependants are taken care of and that your assets are passed on to those who you nominate. Even if you do not have many assets a Will is important. If you were to die and did not have a Will, your assets would be divided up in accordance with the intestacy rules which, will not take into account your wishes or the particular situation. However, contrary to popular belief, your assets will not be given to the government unless a next of kin is not contactable or cannot be located.
How do I make a Will?
A Will must be a written document containing at least one person as a beneficiary, the person to whom your assets are bequeathed. A Will should also stipulate at least one person to act as the executor to oversee financial matters, oversee the distribution of the estate and address any other matters that may arise.
The Will should be clear and concise. It must be witnessed by at least 2 persons over the age of 18, who are not beneficiaries or the spouses of beneficiaries. The executor, if not a beneficiary, is able to witness the signing of a Will. The Will must be signed in the presence of both witnesses and the person declaring the Will, known legally as the testator. Wills Advice of course, will be able to ensure that these requirements are met.
What does a Will Include?
The contents of your Will can specify what you would like done with your assets, everything from houses to shares, and even cash. You may also bequeath items of special value such as a painting, as well as stipulating the rights and powers of others.
Debts however, are not absolved when you die and your estate can be liable for any debts. It is important that you stipulate a plan in your Will for the settlement of any debts, Wills Advice are able to assist you in this regard to ensure that your requirements are fulfilled.
Any superannuation you are entitled to is not included in your Will as you would have specified the beneficiary of your superannuation, when you created your superannuation fund.
Using a Solicitor
Wills do not have to be written by a solicitor. You are able to write your will yourself, or use a readily available Will kit. However, the problem with this is that you may not meet the various formalities required by law which may lead to your wishes not being followed, disputes between beneficiaries, or even your Will being declared invalid. If this were to be the case your beneficiaries may be forced to outlay thousands of dollars in legal costs to fund such a dispute. These costs will be deducted from the estate before it is divided up therefore any legal battle can reduce the value of the estate significantly.
If you do make a mistake the Succession Act (1981) will stipulate the action to be taken by the courts, however failure to comply with a regulation does not necessarily mean that your Will will be declared invalid. The courts, pursuant to the Succession Act, may verify a Will as long as it can be demonstrated that the Will complies with the act for the most part.
It is a good idea to use a solicitor for your Will if you fall into any of the following categories:
- You have children
- You have joint assets, joint bank accounts or other similar arrangements
- You are self-employed.
- You have assets that are overseas or in another state.
- You wish to stipulate special requirements that you wish to have carried out after you die.
- You would like to protect your estate in cases whereby a beneficiary divorces or marries.
- You have a family company or trust operating
- Your have a self managed superannuation fund and;
- Seek peace of mind that your assets will be distributed as you wish.
A solicitor will also help to avoid assets being exposed to creditors as well as gearing your estate to gain tax advantages.
So although a solicitor is not necessary it is highly recommended that you consult a solicitor when preparing your Will, or even if you construct your own Will, it would be in your best interests to at least let a solicitor read your Will and advise of any foreseeable problems. Moreover a Will prepared by a solicitor will ensure that your assets will be distributed as you wish and protect you and your family’s interests
Components of a Will
Beneficiaries
Beneficiaries are the people to whom you will bestow all or some of your assets. You can nominate anyone and as many people as you like, even charities or the university or school you attended. It is however important to check that your nominated charity is able to accept your gift.
It is important that you plan your estate properly so that your dependents will be provided for, if you fail to do this then they can bring an action in the Supreme Court under the Succession Act to try and claim some part of your estate.
It is a good idea to have your estate establish trusts in order to provide for those persons who are not yet 18 years of age.
Wills Advice are able to advise you of your obligations to provide for defendants under the act, as well as construct any special endowments that you wish to make.
Executors
Appointing an Executor is arguably the most important part of making a Will. The executor essentially oversees the distribution of your assets after you die. When choosing an executor things that you should keep in mind include:
- They can be independent, and act impartially.
- They are familiar with your wishes, and that you discuss your wishes with them.
- They will ordinarily live longer than you would, and
- The person is trustworthy, and is able to act in a confidential and impartial manner.
Before appointing the executor, you should discuss at length with the would be executor as to what your wishes are, and also to ensure that they are happy to perform the tasks after you pass away. It is always a good idea to stipulate a second executor in your will so that in an event whereby the first executor is unavailable there will be someone there to oversee the distribution of your assets. You can also appoint your solicitor as the executor of your will if you wish to have your estate managed by an independent party.
The tasks that the executor will be required to carry out include:
- In the event where it is necessary, obtaining probate over the will.
- Collecting any debts or other income, and conversely, settling any outstanding debts.
- Making arrangements to claim life insurance should you have a life insurance policy.
- Assuring that your assets are maintained insured and protected before they are distributed.
- Arranging for assets to be sold if so required.
- The final distribution of the assets.
In light of the above it is of utmost importance that you choose an appropriate executor. Although you may feel obliged to appoint a family member, if they are not able to manage money well, it might be in your best interest to appoint somebody who can manage money well along with being able to remain independent. Wills Advice are able to discuss possible executors with you and help you in making your choice.
Guardians
You are able to make a provision in your Will as to who you wish to be appointed as guardians if your children are under 18.
Generally, for a guardian to be established for the child there must be no surviving parent, however, in some cases a court may decide that it is in the best interests of the child that a guardian be established to help the surviving parent provide for the child. Obviously this issue will raise contention and the court decides what is best for the child, on the merits of the facts it finds itself addressing.
You are able to appoint more than one guardian, however obviously difficulties may arise. The guardian does not necessarily have to be related to the child. Your Will also allows you to stipulate guiding principles for the guardian to adhere to in providing care for your child.
Wills Advice, will be able to assist you in choosing the right guardian and detailing your requirements in respect of their role.
Challenging Wills
It is possible, despite having your Will carefully drafted by a solicitor, that your Will may be challenged. A Will can be challenged for many reasons, some include: Lack of mental capacity at the time of making the Will; the Will was made under duress, or most commonly, somebody who asserts that you owed them a moral responsibility to provide for feels that you have not left them a fair share.
The Succession Act 1981 provides the guidelines within which a challenge must be mounted. To be able to make claim, they need to provide notice to the Executor of court proceedings within 6 months of the deceased’s death. The only people who can bring a claim are a spouse of the person, a divorced partner who has not remarried, a child of the person, or a dependant as defined under the act.
In an application the court will usually look at the size of the estate along with the particular dynamics of the circumstances, which of course, vary from instance to instance.
The best way to ensure that your Will is NOT challenged is to have your Will prepared by a solicitor.
Changing & Cancelling your Will
It would be unreasonable to assume that circumstances in your life will never change; as such as your life changes it may be necessary for your will to change. You made need to change your Will if you divorce, your financial position changes or a beneficiary dies, or circumstances change that will impact on your life.
There are two ways to change a Will. First, you may simply prepare a new Will, which automatically cancels your previous Will. Second, you may prepare a codicil to your current will, which is basically just an addition to your current Will. The rules governing codicils are complicated and Wills Advice are able to assist you in preparing them.
Your Will may be cancelled if you marry or re-marry, you destroy the original, make a new Will or make it clear in writing, either on, or in addition to the Will, demonstrating profoundly that you wish to cancel the will.
If you divorce, your Will, will not be entirely cancelled, only those provisions bequeathing items to your former Wife / Husband will be voided