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Your Will

 

If you have been putting off making a will, now is the time to act. If you have property that you wish to distribute at the time of your death, you should have a Will. If you have responsibilities to dependent children or a spouse we strongly advise having a Will. In fact just about everyone over the age of 18 years should have a Will.

 

What would happen if you died without leaving a Will today?

 

Each year thousands of people die without leaving a Will. All too often this creates more worries, expense and sometimes hardship for the family of the deceased at a time of bereavement. Think about it now, what would happen to your family and loved ones if you were to die without a Will ? 

When a person dies intestate (dies without a will) their loved ones lose control over what happens to their estate. The law provides a formula that sets out who is entitled to what, but this formula may not distribute your assets in the way you desire. There may well be additional expenses to administer the estate, leaving less to your beneficiaries. 

 

 

Executors & Beneficiaries 

 

When you make your Will you'll need to designate Beneficiaries and an Executor. The Beneficiaries are the people or organisations who receive your property. The Executor is the one you entrust to administer your estate and see that your wishes are carried out. 

In many cases the Executor manages and distributes the estate with the assistance of a solicitor. 

Most Wills are a relatively simple matter and you can draft your own legally valid Will without the assistance of a solicitor. However, if your situation is more complex than most, or you feel overwhelmed, we recommended you seek professional legal advice.

 

Your Will needs to be Valid

 

A Valid Will is one that is able to be put into effect and will be accepted by a court of law. To be valid, the Willmaker / Testator must be mentally competent and, your Will must be:

  •  in writing 
  •  signed at the bottom by the testator (you); and
  •  witnessed by at least two people. The testator and the witnesses must all be present when the will is signed.

 

Its important to remember your witnesses cannot be beneficiaries of your estate, or married / defacto to a beneficiary of your estate, and they must be over 18 years of age. 

 

Marriage

 

Marriage revokes a Will. A new Will should be prepared immediately providing for your spouse.

 

Divorce

 

In Queensland, NSW and Tasmania on the day a person is divorced , any previous Will is revoked. In other states divorce has no effect.

 

Legal Age

 

A minor becomes an adult at the age of 18. Once he or she reaches that legal age, certain rights and privileges are granted. In Australia that holds true for when it comes to making a Will. 

 

Mental competence

 

'Being of sound mind ' is a phrase made famous by movies and television versions of Will making. And it is true, mental competence is an essential factor in making sure your Will is legally binding. Being mentally competent means that you know you are executing a Will, and are familiar with your property as well as your family and descendants. 

If it is anticipated that dissatisfied heirs may contest the Will based on mental incompetence, extra steps ought to be taken at the time of the signing of the Will, such as including a doctor's assessment of your competance. 

 

Distribution of Property

 

The main purpose of a Will is to make provisions for the distribution of your property after your death. In general, you can designate anyone you wish to be your beneficiaries and you can distribute your assets in any fashion, but you are advised to make proper provision for your children, spouse and ex-nuptial children. Under the Family Provision Legislation members of a deceased's family and his dependants who are left without adequate provision in a Will may apply to the Court for further provision from the estate. 

 

As we have seen many times in literature and drama, unusual or excessive provisions can be attached to an inheritance. For example, someone includes a Will provision that the first child to bear a child gets the largest share of the estate. While this makes for good storylines in fiction, most probate courts in the real world frown on such provisions. A dissatisfied beneficiary may decide to contest the Will in court. 

 

Providing for minor children 

 

If you have children, your spouse will usually be appointed guardian of your children during their minority. But should there be no surviving parent, you have the right in your Will to appoint someone in whom you have absolute trust to be guardian of your minor children in the event of your death ... someone with whom you can discuss your plans for them and who would be willing to undertake this responsibility. If you have minor children this right to choose the person(s) who would provide the best environment and training for your children is a most important reason for you to have a Will.

If you do not leave a Will any person with a sufficient interest can apply for guardianship. This may not be the person you would choose for such an important responsibility. Your Will can also contain special provisions to help ensure that your adult children’s financial needs are met and funds for them are not spent unwisely. This right is yours only if you make a Will.

 

Providing for adult children

 

It is common for adult children to receive a significant portion of their parent's property. On the other hand, it is legally permissible to exclude an adult child, regardless of his or her needs or age. If you choose to exclude a close family member from your will we strongly recommend you seek professional legal advice.

 

Reviewing your Will

 

Because our circumstances change, it is important to review your Will regularly, to ensure that it still represents your wishes, for example:

  • Beneficiaries under your Will may have died or there may be certain people whom you now wish to make beneficiaries (eg. Grandchildren ).
  • You might get married after making your Will, which will in most circumstances invalidate your current Will.
  • Your spouse may have died or you may have divorced.
  • Your assets may have altered significantly or you may no longer own assets left to beneficiaries.

 

 It is recommended you review your Will every couple of years. 


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