A Will is a legal document that informs your Executor (the person who organises for your estate to be administered) and your family of your wishes upon your death. Such wishes include the distribution of assets, the guardianship of any surviving minor children and details as to why you may have specifically left somebody out of your Will.
Set out below is some general information to consider when making a Will. This is not a comprehensive guide, nor is it tailored to your circumstances. We suggest that you meet with our Estate Planning Lawyers in Parramatta so that we can provide you with estate planning advice tailored to your personal situation.
Why is it important for me to have a Will?
It is important to have a Will to:
- ensure that your wishes are clear;
- decide what you want to happen with your hard earned money;
- keep heirlooms in the family;
- make sure that your children are looked after;
- put in place appropriate financial and tax planning measures;
- look after your family and loved ones;
- avoid family squabbles and disputes;
- avoid the time, stress and money caused by disputes;
- reduce the heartache for your family; and
- give you and your loved ones peace of mind.
What happens if I Don’t Have a Will?
When a person dies without a Will, the distribution of their estate is left to the system set out by the law. A clear, concise and well-drafted Will can reduce disputes and help ensure an estate is distributed in accordance with your wishes.
Can I Just Write Down What I want to Happen?
If you want to create any other Will-type document, no matter how informal, you should speak to our Will lawyers. Such documents can create confusion and added costs in your estate, especially now that the law allows informal dispositions and gifts under certain circumstances.
One word of caution – putting stickers on household items and jewellery nominating a recipient is generally futile unless all beneficiaries in your estate agree with the nominations.
Can’t I just use a "Legal Will Kit" from the Post Office?
You would use an Estate Planning Lawyer to prepare your estate planning documents for the same reason that you would engage a specialist surgeon to carry out your surgery. Lawyers are trained in the craft of writing and creating certainty through well drafted documents. They also have experience in dealing with family disputes between executors and beneficiaries regarding Wills and estate planning and they know what can go wrong and how to help avoid problems.
Throughout your lifetime you are likely to accumulate significant assets. You do not want to see all of that hard work wasted away as a result of a poorly drafted Will, family squabbles or poor tax planning.
We recommend that you obtain financial and taxation advice regarding implications of social security entitlements, capital gains, stamp duty and other tax when considering your estate planning. This may be a good time to gain comprehensive financial planning advice. If you do not have a financial planner and tax advisor, let us know and we can provide a referral. We can also assist by providing you with a comprehensive Will that will minimise the tax your estate may have to pay. If you have significant assets and would like these to pass to your estate in the most tax effective way then please contact our estate planning lawyers to ask us about a Testamentary Trust Will.
Keeping your Will Up-to-Date
We recommend you review your Will at least every three years or whenever there is a major change within your family, assets or to the tax laws - this is one of the reasons we provide you with a copy of your Will.
If your circumstances change, you should discuss the requirement to make a new Will with our estate planning lawyers. Life events that may require you to make a new Will include:
- you change your name, or anyone named in the Will changes theirs;
- you get engaged, married or divorced;
- you enter into or end a de-facto relationship; or
- you have children (including adopted or foster children);
- your children have children;
- an executor dies, is unwilling to act, or becomes unsuitable because of ill-health, age or for any other reason;
- a beneficiary under the Will dies;
- a specific asset left under the Will ceases to exist, or you sell it or give it away, or put it into a trust or a partnership, or if it changes its character. This applies especially to shares in a company which restructures its share capital.
If you have any reason to change your Will, revoke it or make a new Will without informing your spouse or de-facto partner, you may do so, but you should talk to our experienced Will lawyers about this.
You must never mark any Will after its execution. Any change can have disastrous results. If you want to change even the simplest item, you should consult with our Will lawyers first.
To amend your Will you can either instruct us to prepare a "codicil" (document), which will be attached to your existing Will or prepare a new Will. Depending on the amount of amendments to be made, it is often best to prepare a new Will.
Family Provision Legislation
Family provision legislation provides that someone who belongs to a certain group of people related to you (e.g. spouse or de-facto partner, children, grandchildren, persons whom the testator supported financially or with whom they held long term parental responsibilities), and who has not been adequately provided for under the Will, may challenge the Will.
It is essential that your Will deals with these types of persons so as to avoid potential claims on your estate. If you are not providing for someone that falls into this category, please discuss this with our beneficiary lawyers so that we may provide you with the necessary advice and prepare the most suitable documents.
Protecting the beneficiaries
Where beneficiaries fall into any of the following categories:
- Suffer a disability;
- Are bankrupt;
- Involved in Family Law disputes;
- Gambling problem;
- Drug/Alcohol dependant.
We recommend that you obtain the necessary advice from our beneficiary lawyers at Parramatta so that your Will can be drafted in a manner to provide for these vulnerable beneficiaries whilst at the same time protecting their inheritance and the inheritance of future generations. For further information please refer to the information regarding Testamentary Trusts and Life Estates.
What happens to any Previous Wills?
Your new Will revokes all previous Wills. Provided your new Will has been correctly executed, you should arrange to note the revocation on your old Will(s) by ruling a line through each page of the old Will, and writing on it “Revoked by Will dated XX/XX/XX, presently held at XXX ”. You should file the old Will with the new Will or return it to us for filing. Revocation can also be effected by tearing up your old Will. However, you should record the fact that you have done this, and keep the record with your new Will.
Storing Your Will
In most cases we will provide you with a certified copy of your Will. You should keep this with your more important documents at home. With this copy please leave a note indicating the whereabouts of the original Will and the date on which you signed it. It is important that your Will is easily found when it is needed. If you have a photocopy of the original Will, it is a good idea to write “COPY” on each page of the photocopy.
Your original signed Will should be kept in a safe place. We have safe custody facilities to store your original Wills, Title Deeds and other important personal papers. You should also notify your Executor of the location of your original Will. It is also recommended that you provide your Executor with a copy of your Will and details of the whereabouts of the original. If it is lodged with us, unfortunately we cannot take the responsibility of informing executors or beneficiaries on your death of its existence or its provisions.
Need Further Help?
If you need further advice or assistance please contact our Wills lawyers in Parramatta so that we can provide you with estate planning advice tailored to your personal situation.