Estate Planning and Probate

Making a Will – Information

 

Do you need to make a Will ?

For many of us making a Will is acknowledging our mortality. More importantly though, making a Will is acknowledging those who matter to you in your life and providing peace of mind for you and those who care about you. Making a Will ensures that your assets will be given those that you require and that a person who you trust is appointed to carry out your wishes.

So what is a Will ?

A Will is a legal and binding document that names the people you want to receive your assets and possessions you own at the date of your death. These people are known as your beneficiaries. Your assets and possessions include everything you own i.e. your home, land, motor-vehicle, money in bank accounts, insurance policies, shares, jewellery, pictures, furniture and furnishings, etc. Generally, lump sum superannuation death benefits are not part of your assets or estate as beneficiaries are usually dependent on your superannuation nomination form lodged with your fund. Making a Will is the only way you can ensure your assets will be distributed in the way you want when you die.

What is a valid Will ?

A valid Will is one that has been accepted by a court and has been put into effect by a Grant of Probate. A valid your Will must be:

  • In writing – Handwritten, typed or printed
  • Signed – Your signature should be at the end of your Will
  • Witnessed – Two independent witnesses.

If your Will is not made in this manner it may not be a valid Will or enforceable. If your Will is not made in the correct manner then your assets may not be distributed to the people that you have nominated although applications can be made to a court at significant expense to attempt to rectify the invalidity in an incorrect Will.

Can i make a Will myself ?

Yes, you can make a Will yourself if you require. Printed Will forms are available from many newsagents. There is no requirement that a Solicitor draft a Will. However, it is not in your best interest to draft your Will yourself. There have been many cases where homemade Wills were either unclear, not properly drawn up or have caused an unwanted tax liability. Many of these cases end up in court and carry on for years causing distress and undue hardship to the family of the deceased person. In general, solicitors do not charge a large fee for making a Will, and since it is one of the most important legal documents you will ever make, it is falsely economy to try to do without skilled professional advice.

How can I make sure my wishes are carried out ?

You should appoint in your Will a person called an Executor to handle your affairs after you die. If you wish, you can name more than one person to act as Executor. You could choose anyone to be your Executor your spouse, partner, relative, friend, Solicitor. You should always ask the person you are considering first if they are prepared to take on the tasks and confirm with them that you wish to appoint them as your Executor. Being an Executor is a very responsible position. The Executor may have to obtain Probate of the Will and pay all debts and liabilities of the Estate before attending to distribution of the balance of your Estate to your named Beneficiaries. An Executor that is not a Beneficiary may apply to the court for a payment for his or her work as an Executor.

Can I alter my will if I change my mind ?

Yes you are free to alter your Will at any time. If your circumstances change, you can and should alter your Will. However you cannot simply make an alteration by crossing something out on the Original Will and writing in your new wishes. If alterations are minor you can make a Codicil which is a separate document where you change provisions in your Will. It is usually better to make a new Will.

What if I marry or Divorce ?

If you made a Will before you married, it would automatically be revoked by law when you marry unless it was made with a provision that it was made in contemplation of your marriage. So if you marry you should make a new Will. If you made a Will before your Divorce any gift or appointment as executor of your former spouse is automatically revoked. Again, if you divorce you should make a new Will.

Where should i keep my Will ?

Your Will should be kept in a safe place because if it is mislaid it may be presumed to have been revoked. We can retain your Will in our safe custody storage at no charge to you. Most financial institutions will also hold your important papers and documents at nominal charges. You Will may also be deposited with the Supreme Court for a nominal fee.

How does my executor know where to find my Will?

On our execution of your Wills we will provide you with a copy of your Will. We suggest that you advise your Executor and inform them where you will be keeping the original Will.

We can assist you in preparing or updating your Will by:-

  • Ensure your Will is valid, properly drawn, signed and witnessed;
  • Ensure your wishes are clearly expressed in your will
  • Advise you regarding provision for your spouse, children, children from previous relationships, former spouses, family members, friends and/or charities;
  • Advise you as to possible taxation liabilities which might result from provisions you intend to make in your Will
  • Advise you on choosing an executor
  • Advise you on the best way to arrange your affairs
  • Keep you Will in safe custody storage without charge.

View our Fees for Wills here

Call us now (02) 4388 4410 to discuss your Will Requirements.