What is a Will?

A Will is a legal document in which a person of sound mind affirms the manner they wish the assets from their estate to be distributed after their death.

A Will is the most effective way to make sure that your assets are dealt with after your death. You work hard to enjoy the benefit of your assets during your lifetime so make sure they go to the beneficiaries of your choice and not to someone you donít wish by making a Will today.

A Will is a legal, personalised document that:

• helps protect assets you have accumulated
• names the Executor of the Will (the person/s responsible for managing distribution of the estate)
• has been signed by the person making the Will and needs to be witnessed correctly
• has a date of execution/signing
• must have witnesses of over 18 years of age (minors are unable to witness a Will)
• must have no other marks on the page
• a Will can be changed at any time and when changed supersedes a previous Will

It must be noted that where property is owned as joint tenants, on the death of one person the property automatically pass to the survivor.

Why make a Will?

Making a Will is the best way of ensuring that your wishes are taken into consideration when distributing your estate after you die giving you control. Most people intent on making a Will but generally delay doing so, which can sometimes have unfortunate consequences.

If you die intestate (meaning without a Will) your estate will be distributed according to a rigid legal formula, which is determined by the government, and more than likely will not be as you may have wished. The distribution of your estate may take longer and be more expensive if it proves difficult to track down family members.

Anyone who has divorced and or separated from a defacto relationship and has re-partnered has compelling reasons for making a new Will.

You may or may not have been aware that marriage may automatically revoke your Will. In the same way, divorce can automatically revoke aspects of your Will unless expressly stated otherwise. Those that may make a claim against your estate now include stepchildren, grandchildren, de facto or same sex partners, amongst others.

A professionally prepared Will is the best way of taking control in helping to ensure your wishes will be carried out.

Choosing an Executor

One of the most important aspects of making your Will is nominating the Executor. You want to make sure that you have selected someone who you feel comfortable with and trust, and that will carry out the execution of your will in accordance with your wishes.

DO YOU HAVE A WILL?

Benefits of having a Will

• By making a will you are directing to whom and in what manner you want your assets to be distributed upon your death
• You can provide for the future of spouse and children, including guardianship. The welfare of pets can also be included.
• Having a will minimises the delay and expense in the administration of your estate
• You can benefit friends and relations or charitable bodies who would otherwise be excluded

WHO CAN MAKE A WILL?

Anyone over the age of 18 years of age, who has the mental capacity to understand what is being done, can make a will.

WHAT IF THERE IS NO WILL?

• You have no control over the distribution of your estate.     It may not be divided according to your wishes.
• Your children or other minors may not receive the protection you would have wished and you may not have the opportunity of appointing a guardian.
• If you do not have a partner, children or other relatives, the government may inherit your estate.
• Your estate may be administered by someone you would not want to appoint.

DO I NEED A SOLICITOR?

A solicitor will ensure that the will is properly drawn up according to your wishes. They will discuss important matters with you including:

• The selection of an executor and the powers to be given to him or her.
• The guardian for your children and other minors in your care.
• Providing for a de facto spouse, for second marriages and blended families.
• Funeral arrangements

What is an Executor?

An Executor manages your estate upon your death and is responsible for the administration and distribution of assets to beneficiaries according to your wishes expressed in your Will.

The duties can be demanding and complex and may require an understanding of the following:

• Wills and Probate Law
• Taxation
• Accounting, and
• Business practices

The duties of an Executor may include:

• The making of funeral arrangements of the deceased
• The preparation of and the lodgement of taxation returns etc.
• Securing and realising the assets of the estate
• Holding any funds for children or life interests in trust
• Distributing the assets in accordance with the directions of the Will
• Obtaining a grant of probate from the Supreme Court
• Property management or sale thereof

You must think wisely about whom you appoint as Executor. You need to ensure that it is an individual(s) who you trust and who has a good understanding of the law and finance. The Executor/s may need to control and administer the affairs of your Estate for what may be several years, particularly if you have younger beneficiaries.

You may wish to appoint your solicitor as an independent person to be the executor. In many ways this is a very smart move, as you will be able to rest assured that your wishes will be executed properly. Further, if there is a likelihood of family arguments an independent person would be better placed to carry out your wishes accordingly and put a stop to any undue arguments.

Important Considerations

Your Will is one of the most important documents you will ever write. There are many important elements to consider before starting your Will, these include:

• What are your assets and liabilities?
• Who should you choose as your Executor?
• Who are your beneficiaries?
• How you would like to distribute your assets amongst beneficiaries?
• Who would you like to act as Guardian for young children?
• Do you have any specific funeral arrangements?
• What about your pets? You can make provisions for there care too in your Will
• Perhaps you would like to leave something to a Charity

Circumstances that may need Special Consideration.

• You anticipate that someone may contest your Will
• You are planning to exclude one or more of your children, your spouse or someone who is financially dependent on you
• You have beneficiaries with special needs, for instance, a physical or mental disability or you may have vulnerable beneficiaries, this may include a child who has a gambling problem, or drug addiction
• You have assets outside Australia
• You have a family trust
• You own a business
• Your financial affairs are complex
• You are contemplating divorce
• You have a spouse/partner and have children from a previous marriage and/or relationship

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