Wills: You decide who should get your assets. Don't leave it until it's too late

by Rockliffs Solicitors and IP Lawyers

Many of us don’t like to think about death and/or making a Will but there are many times throughout our lives when we do need to think about the future and how to protect our family financially in the event of our death.  Estate planning does not commence on death.  In fact those who do not effectively plan their personal and financial affairs could leave their loved ones with an unpleasant legacy.

Q. Why do I need a Will?

A. A Will puts you in charge of important decisions now about what you want to happen to your affairs after you die.  It is a legal document which will ensure your intentions are carried out.

You should take action now so that you can be assured that your assets will be given:-

 

  • to the people you want;
  • to support your beneficiary’s needs;
  • in the way you want;
  • as quickly and simply as possible; and
  • as tax effectively as possible.

 

Having a Will makes the winding up of your estate less confusing, quicker and cheaper.

Q. What happens if I die without making a Will?

A. If you don’t have a Will there is no guarantee that what you intend to happen will happen and which can cause hardship to those closest to you.

Your estate will be distributed under the rules of the Intestacy.  These rules are very general and are unlikely to reflect your specific wishes or circumstances.  For instance:-

 

  • Your partner may not automatically be entitled to all of your estate;
  • Your partner may be forced to sell the family home or car so other beneficiaries can claim their share of your assets;
  • Someone you may not have chosen could be appointed guardian of your children;
  • Someone you do not wish to benefit could become a beneficiary; and
  • Your children could take control of their inheritance at 18 rather than a more mature age such as 21, 25 or 30 years.

 

Q. If I don’t say where my property goes then who does?

A. Without a Will you have effectively left it up to the government to make your decisions for you.

Q. Should I draw up my own Will?

A. Homemade Wills are fraught with problems.  The complexity of laws relating to property, taxation, deceased estates, stamp duty, partnership, companies, superannuation, contracts, insurance, trusts and the like make it essential that a Will be drawn up by a solicitor, otherwise you could put your family’s financial security at risk.

Q. Who takes care of my affairs after I'm gone?

A. The executor is the person chosen by you, to take charge of your estate.  Their role is to collect all your assets (such as bank accounts, shares, insurance policies etc), pay all your debts and distribute the balance to the beneficiaries in accordance with the directions laid down in your Will.

Q. Who would be the best person to be my executor?

A. Naturally you should choose someone you trust completely to carry out such an important responsibility and who knows you well enough to be aware of your intentions or wishes.  You should also consider their age, health, location (they should not live too far away to effectively carry out their duties) and whether they would be willing to take on the responsibility.

Q. How many executors should I appoint?

A. We recommend that at least 2 executors be appointed.

Q. Do my executors get paid?

A. An executor may apply to the Court for commission for the time and trouble that must be devoted to the administration of the estate.

Q. What if I want to leave a dependant out of my Will?

A. For whatever reason, if you decide you do not wish to leave any part of your estate to one of your dependants, you are entitled to stipulate this in your Will.  However, your children or your spouse may dispute the terms of the Will on the basis that you have not made adequate provision for them (we suggest you refer to our article titled “Have you been left out of a Will?”). It is very important you seek legal advice regarding this to ensure that your estate gets distributed to those you intend and that finalisation is not dragged out by costly and unnecessary legal action.

Q. What if I have lent people money before I die?

A. Any money owed to you at your death is your asset and forms part of your estate.  For example, if loans have been made to your children, then you can consider whether these loans are to be forgiven in your Will.

Q. What if I get married or divorced?

A. Unless your Will is worded in a particular way, a marriage after the signing of a Will automatically revokes the Will (in other words the Will will be of no effect).  Conversely, divorce does not automatically revoke a Will.  Therefore if you have separated or are divorced, it is important to obtain legal advice with respect to preparing a new Will.

Q. Can I sign the Will at home?

A. On occasion we are requested to send a Will out to clients to be signed.  We prefer not to do this as there are strict rules with respect to the signing of a Will which if not followed strictly could invalidate the Will.  If it is done in our office we can ensure everything is done properly.

Q. Can I change the Will at any time?

A. Once made, a Will can be revoked or changed at any time.  It is really of no effect until you die.  If there are changes to be made we recommend you seek advice from us because if the amendment is incorrectly carried out, the delays and legal costs involved in later correcting this mistake can be expensive.

Q. Where is the best place to keep my Will?

A. We recommend you leave your Will with us, free of charge in our safe or with your Bank to hold for you.  You should notify your executors as to where the Will is being held/stored.  If your Will is lost or accidentally destroyed and cannot be found on your death, then you may be presumed to have destroyed it with the intention of revoking it.  In this situation the laws relevant to intestacy then apply.

Q. What if I already have a Will?  

A. Your Will is not something that you do once and forget about.  You should review your Will every 2 to 3 years.  It is important that you do not overlook changes that occur in your life such as marriage, divorce, de facto relationships, having children, buying and selling assets, starting or selling a business, changes to taxation laws and other changes in circumstances which can have a serious effect on your Will.  When any of these events occur, reassess the contents of your Will so that it remains an accurate record of your wishes.
 

For further information or assistance please contact Rockliffs on 02 9299 4912 or email us at lawyers@rockliffs.com.au

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