Making a Will
What you need to know before making a Will
A Will is a legal document explaining how your Estate (everything you own) is to be dealt with after you pass away.
A will is not something we like to think about – but really important to have.
The importance of making a Will
- The Testator (will maker) decides who benefits from their assets when they die. If they die without a Will (“die intestate”), assets get distributed in accordance to law – in a specific order. For example, to a spouse, unless they have children from a former relationship, then other rules will apply.
- A Will can be used to appoint a guardian for minor children. In the absence of a responsible guardian, the Family Court may appoint one.
- The Testator can nominate their executor, the person(s) or entity whom they would like to manage their affairs.
- A Will gives clear directions to family and friends, helping to avoid unnecessary stress in circumstances where they are already grieving.
- Will save families unnecessary legal costs when dealing with the deceased’s estate.
- Specifically drafted Wills may reduce the amount of tax that beneficiaries will pay on the income received from the deceased’s estate.
A will can be made if you are over 18 years and have full mental capacity.
Reasons to make or update your will include:-
– buying or selling property
– relationship changes (i.e. marriage, divorce, entering a de facto relationship or separating)
– starting or ending a business
– major changes to your financial circumstances
– travelling or moving overseas
– growing your family (i.e. children, stepchildren or grandchildren)
– coming into an inheritance
Some property cannot be gifted through your will. For example, if you own a property with someone else, such as a spouse as joint tenants, the other joint tenant is entitled to your share upon your passing, regardless of your will. Superannuation needs to be considered differently and needs to be discussed with your lawyer.
If you have separated with a partner and are not yet divorced, you don’t want your assets to automatically go to your estranged husband or wife – or your old will is no longer in line with your future needs. This makes it is even more crucial to ensure that your assets are left in accordance with your wishes – be it for your children, family or causes that are important to you.
You may also need to consider appointing a guardian for the care of any children under 18 in case you or your former spouse is no longer around.
A simple will the most common type of will that is very straightforward. It will determine who is to control and receive the benefit of everything you own when you pass away.
If you require something more complex, like the creation of testamentary Trust, contact us to obtain a quote. More complicated wills are generally only recommended to those who are leaving a substantial inheritance to their beneficiaries.This type of Will has asset protection and taxation advantages, but is more costly.
Marriage in Australia generally cancels an existing will – unless the will was made in contemplation of marriage.
If you are in a relationship and planing on marrying in the near future, but are not sure at the time of will-making, the law in New South Wales (and most Australian states) provides that if you express that expectation in your will and the marriage goes ahead, your will remains valid.
Safeguard your family and protect their future.
Enduring Power of Attorney
An Enduring Power of Attorney appoints a person (called an “Attorney”) to sign financial documents and sometimes make decisions on your behalf. This may be when you are unwell or unable to do so (due to logistics or travel). It is essential that you appoint someone that you trust and the Attorney needs to abide by the rules you put in place and the law at large.
When you make an appointment of enduring guardianship, you appoint someone to make health and lifestyle decisions for you, in the unfortunate event that you lose the mental capacity to do so for yourself. This is even more important if you have children as the decisions made will impact them as well.
If you have separated and are not yet divorced – not appointing an enduring guardian may leave your former spouse with unimaginable right to control decisions about your health. This decision may almost certainly be better left with a trusted friend or family member.