Your Will is one of the most significant legal documents you will ever sign. No one wants to think about dying, however it is important to take proactive steps to ensure that your loved ones are provided for in a way that reflects your wishes and protects your legacy.
Our experienced Will & Estate Planning Lawyers give you peace of mind by completing a comprehensive review of your circumstances and working with you to create a strategy that suits your needs and wishes. This ensures your assets are protected and that potential conflicts are minimised with the goal of family harmony.
What you can expect from our team at your appointment:
- We sit down with you and review your individual financial and family circumstances;
- We listen to what you want to achieve; and
- We use our expertise and experience to create a Will that achieves your desired outcome.
What is a will, and why do I need one?
A Will is a legal document that outlines your wishes about who you want to inherit your assets, who will be responsible for administering your estate, and other important instructions such as who will care for your minor children.
It ensures that your wishes are followed and that your loved ones are provided for according to your intentions, after you’ve passed away.
Who can create a Will?
Generally, anyone who is of sound mind and over the age of 18 can create a Will.
In some circumstances, a Statutory Will can be made by or for a person that doesn’t have the legal capacity to make, alter or revoke a Will.
Who should make a Will?
Anyone who is 18 years old or above should make a Will.
Even if you don’t think you own much it is important to make a Will. This is because it is much easier for an estate to be administered if there was a Will. The costs of administering an estate, even with minimal assets, can become disproportionate to the value of those assets where there is no Will.
What happens if I have estranged family members?
If a member of your immediate family has been estranged from you for a period of time, careful consideration needs to be given when creating a Will. If a family member who has been a dependant of yours has been left out of your Will, that person may have a right to challenge your Will in Court in certain circumstances. A carefully prepared Will might just save the people you leave behind a significant amount of grief and legal expense.
How will my young children be taken care of?
A Will can specify who the guardian of your children under 18 will be in the event of your death. Nominating a guardian in your Will can reduce the conflict between family members about who will care for your children after you die. If a dispute does arise it is the Family Court who determines where children reside and who makes decisions about them. In the event of a dispute the nomination of a guardian in your Will shows what your intention was.
The law provides that your children cannot take control of their share of your estate until they are 18 years of age. You can specify in your Will who will manage the benefits being left to your children until they reach the age you nominate for them to receive the benefit.
Your Will can stipulate how old you want your children to be when they receive their share of your estate. If no age is specified children are entitled to receive their share at 18 years old. Many parents want their children to be older before they receive some, or all of their share. Commonly the ages of 21 or 25 are specified. Knowledge of the law is important to ensure that your children do not receive what you have left for them early if you specify an age older than 18 years.
Our Wills and Estate Planning Lawyers can talk you through the key issues that emerge when selecting guardians and deciding the age your children will take control of what you leave for them thus ensuring you can make an informed decision.
What if my child or a beneficiary has a disability?
If you have a beneficiary who has a severe disability, one of the options you should consider is whether a Special Disability Trust or a Protective Trust should be utilised when making your Will.
A Special Disability Trust allows you to provide for your child or beneficiary who has a disability in a way that does not impact their entitlement to receive a government disability pension (subject to the value of the trust which is revised annually). A Special Disability Trust is used to provide for particular benefits to the beneficiary such as accommodation and health care. Discretionary expenditure from the trust needs to be compliant with the legislative requirements.
A Protective Trust allows you to provide financial protection for your child or beneficiary (the vulnerable beneficiary) by giving power over the income and capital of the trust to a Trustee who use it to benefit your beneficiary for the purposes specified in your Will. A Protective Trust is not subject to the constraints of a Special Disability Trust and so can be used to provide for broader purposes than a Special Disability Trust. Those broader purposes can include providing for the beneficiary’s recreation, holidays, entertainment and many other things. A Protective Trust is not suitable when a priority is to preserve the beneficiary’s entitlement to a government pension.
Another option is to use a Testamentary Trust
Can I protect the benefit being left to a child or a beneficiary?
If you have a beneficiary who has an addiction such as to alcohol, drugs, or gambling how they receive any gift being left to them under your Will requires careful planning. For example, it would not be desirable for an alcoholic to receive a significant amount of money from a deceased estate as that could have dire consequences on their health.
A Protective Trust allows you to provide financial protection for your child or beneficiary (the vulnerable beneficiary) by giving power over the income and capital of the trust to a Trustee who use it to benefit your beneficiary for the purposes specified in your Will such as recreation, holidays, entertainment and many other things. A Protective Trust is not suitable when a priority is to preserve the beneficiary’s entitlement to a government pension.
Using a Protective Trust avoids your beneficiary receiving the benefit you are providing for them in one lump sum upon your death.
Another option is to use a Testamentary Trust.
Storage of your Will
It is important that your Will is not marked in any way after it is made. It is also important that the original Will can be located upon your death. We offer free and secure storage of your Will (and other estate planning documents) in our safe custody facility.
What should I include in my Will?
Your Will should appoint an executor, set out who the beneficiaries of your assets are including any specific assets, nominate a guardian of any minor children and include any specific instructions or wishes you have.
Some people like to specify arrangements for a funeral and burial or cremation.
Can I include digital assets in my Will?
Yes, you can include digital assets in your Will however the lack of legislative framework about digital assets can make the gifting of digital assets complex.
Digital assets that you own and which can be transferred can be gifted by your Will.
For digital assets that are not owned, you may be able to specify how they should be managed after your death.
What happens to my debts when I pass away?
Your debts do not automatically disappear upon your death. They are typically paid from money or property left in your estate. It is your Executor’s responsibility to make payment of the debts from the assets of your estate.
What happens can vary depending upon whether the debt was secured or unsecured and whether you were solely or jointly responsible for it.
If your debts exceed your assets, your estate may be insolvent. It is crucial that any Executors get proper legal advice before acting if there is any possibility that the estate may be insolvent. Neither your Executor nor your beneficiaries are personally responsible for paying your debts.
In some circumstances particular assets are protected from application to the debts of your estate.
How do I choose an Executor for my Will?
An Executor should be someone you trust to carry out your wishes and handle your financial affairs responsibly.
An Executor is often a family member such as your spouse or adult children, a close friend, or a professional, such as a lawyer or accountant.
If appointing joint Executors, to avoid disputes between them you should also consider how well they get along with each other, family members and beneficiaries.
An Executor must be 18 years old.
What are the duties of the Executor?
Put simply, your Executor has the primary responsibility of collecting the assets of your estate, making payment of the debts of your estate and distributing your estate to your beneficiaries. It can also be the responsibility of your Executor to arrange and pay for your funeral (though the cost of your funeral is not the Executor’s personal expense).
If there is a challenge or dispute over your Will, your Executor will be responsible for defending it. This is why you must take great care in selecting an appropriate Executor.
Can an Executor of a Will be a beneficiary?
Yes, it is common for an Executor to also be a beneficiary.
Do I need to inform my family about my Will?
While you’re not legally obligated to inform your family about the contents of your Will, it’s often a good idea to discuss your wishes with your loved ones to avoid surprises and potential disputes later.
It is a good idea to at least tell your family that you have made a Will and about where it can be located upon your death.
What is probate?
In simple terms, “probate” involves an application to the Supreme Court to establish that your Will is valid and that the Executor has permission to administer the estate.
If you or a loved one dies with certain assets or assets of a particular value a Grant of Probate is a requirement.
