A Will is a legal document in which a person chooses who controls their estate (by choosing an executor) and sets out how and to whom their assets are to be distributed after death.
Making an appropriate Will is important if you wish to determine who will receive your assets when you die. Generally, your Will should be reviewed whenever there is a change in circumstances.
The following questions should be considered in deciding whether you should revise and update an existing Will:
- Has anyone in your family died?
- Has anyone in your family become disabled or seriously ill?
- Have you retired?
- Are you planning to retire in the foreseeable future?
- Are you likely to receive any inheritances in the foreseeable future?
- Have you developed connections with jurisdictions outside Australia since you made your last Will?
- Have you acquired or disposed of any substantial property or collectables?
- Has anyone named in the Will married, started a domestic relationship or moved overseas?
- Are any of your beneficiaries enduring a relationship breakdown?
- Have any of your beneficiaries encountered financial difficulties?
- Have any beneficiaries developed diminished capacity?
- Do the range of beneficiaries in your Will remain appropriate?
- Do the gifts in your Will remain appropriate?
Why is it necessary to have an up-to-date Will?
Ease of Administration of Assets
If a person dies without a Will they are said to have died intestate. Where there is no Will or the Will is invalid, in order to deal with the deceased’s assets, the next of kin must apply to the Supreme Court for letters of administration. The law provides who is entitled to administer the Will. If all the persons who are entitled to become administrator do not agree who should be the administrators then that issue must be determined by the court and it is usually a protracted and costly process. Until the letters of administration are granted, no person can deal with the deceased’s assets. In contrast, where an executor is appointed, they can act immediately, upon the grant of probate and, to a limited extent, the executor can act before the grant of probate.
You determine where your assets go on your death
If a person dies intestate, assets will be distributed amongst family members in accordance with the laws on intestacy and the deceased person will have no control over who will inherit or how much they will inherit.
Beware the High Cost of a “Cheap” Will
Our laws relating to Wills emanate from British law and have evolved over hundreds of years and due to complexity of these laws, it is wise to have a will professionally prepared. A professionally drawn Will usually costs less than a fraction of the value of one percent of a person’s estate.
Preparing your own Will is a classic example of two old adages: Being pennywise and pound foolish and a person who acts as his own lawyer has a fool for a client and an idiot for counsel.
The dangers of an inadequate Will are that it:
- May cause your family unnecessary legal cost, stress and administrative difficulty (amateur drawn Wills have historically generated more work from the legal profession that have professionally drawn Wills);
- May not be tax effective and may significantly reduce the benefits you can pass on to your family;
- May distribute your estate in a way you did not intend, creating inequities between family members;
- May not properly provide the executor of your Will with adequate powers to provide for the investment for the benefit of minor children or others for whom property may be held in trust; and
- May not give you peace of mind that a properly prepared estate plan will give you.
Is it worth saving a relatively small amount of money to put at risk many hundreds of thousands of dollars’ worth of your assets accumulated over a lifetime?