Your Will

A Will is a legal document which clearly sets out your wishes about the distribution of your assets if you die and, where you have children under the age of 18, who you wish to appoint as their guardians. Every adult should have a Will. Even though legislation exists in case you do not have a Will, the result is highly unlikely to be what you would have wanted and could be unsatisfactory and inappropriate to those left behind.

Should I use a lawyer to make my Will?

Given the complexity of laws governing succession, including taxation issues and claims by family members (challenging the Will), a lawyer will:

• provide you with expert advice and assistance about what you need to consider in making your Will;
• ensure your Will is drafted within legal requirements; and
• guide you in decision making that limits the prospect of having your Will challenged.

Why should I make a Will?

It is important that all adults have a current Will.

If you die without leaving a valid Will you are deemed to have died ‘intestate’ and it is necessary for a court to appoint an administrator to deal with your estate.

Your estate will be distributed according to rules set by Government legislation. These rules vary from state to state, but generally the distribution is to your spouse, children and then other next of kin such as brothers, sisters, parents, in proportions set out in the legislation.

The Government legislated way of distributing your estate may not suit your family needs. Therefore, it is important to make a Will so you can ensure that your estate is distributed to beneficiaries of your choosing.

What does "Executor" mean?

The Executor is the person or persons whom you appoint to administer your estate.

We recommend that there be two Executors or one Executor but if he or she dies, then another Executor (a backup Executor) is also named in the Will. This is merely to protect against the situation of an Executor dying or becoming incapacitated before you and before you have a chance to update your Will with new Executor details.

An Executor should be someone you trust to deal with the assets in your estate, in accordance with your wishes. Executors can act by themselves or they can engage a lawyer to assist them. If they engage a lawyer, the legal fees can be covered from the proceeds of the estate.

What should I consider when making my Will?

When making a Will you should consider the following:

• Who you wish to appoint as your Executor or Executors;
• Who you wish to be named as a beneficiary or beneficiaries of your estate;
• The amount or share of your estate to be given to each beneficiary;
• Whether you wish for specific items to be given to specific beneficiaries;
• If you have children under the age of 18, who you wish to appoint as guardian of your children.

When should I revise my Will?

There are a number of instances where you should consider revising and/or updating your Will. These include:

• If you change your name, or anybody named in the Will changes theirs;
• If an Executor dies or becomes unwilling to act as Executor or becomes unsuitable due to age, ill health, long term absence from Australia or any other reason;
• If a beneficiary (someone who has been left something in the Will) dies;
• If you have specifically left any property which you subsequently sell or give away or put in trust or into a partnership or which changes its character. This applies particularly to specifically bequeathed shares in a company which restructures its share capital;
• If you marry or divorce, or if you enter into, or end, a de facto relationship;
• If you have children after you’ve made your Will or if you adopt or foster children.

Always remember; your Will should not be thought of as static. You should consider and, if necessary, amend it regularly (usually, every 5 or so years).

Can my Will indicate my wishes with respect to cremation or burial?

Yes.

However, there is not often a formal “reading” of the Will and a funeral or cremation is regularly organised prior to the Will being looked at.

You should make your family and Executor aware of your wishes in respect of a cremation or burial at the time you make your Will.  We can assist you to create your own detailed guide as to your wishes for your funeral service to give to them or keep with your important documents.

Where should I keep my Will?

Once your Will has been signed, it should be kept in a safe place with your important documents, or in a bank safe deposit box. We hold numerous Wills on behalf of clients and are more than happy to retain it on your behalf. There is no fee for this service.

It is most important that your Executor and major beneficiaries are made aware as to where your original Will is located.

You may also wish to provide a copy of your Will to your Executor(s).

What is the difference between a Will and an Estate Plan?

A Will is a single document. An Estate Plan involves a more rigorous approach involving:

• consideration of all aspects of your family relationships including who has a legal claim upon your estate;
• analysis of your financial position and considering any changes needed to give effect to your wishes; and
• devising a strategy which allows for wealth protection and taxation benefits.

Contacting E&A Lawyers for advice or assistance

For more information or to arrange a consultation with a lawyer, you can call or email us.

📞  02 9997 2111

📧  info@ealawyers.com.au