Wills, Estates and Powers of Attorney. 

Common Questions Regarding Wills

DO I NEED A WILL? 

Yes.  A Will is an important document as it sets out what is to happen to your estate when you pass away.  Setting out your wishes in a Will can provide your family with a lot more certainty and can make a difficult time more bearable. 

WHAT CAN I DO IN MY WILL? 

Your Will must provide who you wish to be your executor and your wishes as to how your estate is to be distributed.  It can also detail your funeral wishes and other matters including your consent to be an organ donor. 

The person you name as the Executor of your Will should be someone you trust and who has the capacity to deal with your affairs during what can be a very emotional time.  Essentially, an Executor is charged with protecting a deceased person’s property until all debts and taxes have been paid, and then ensuring distribution of your assets in accordance with your Will.  Roles of an Executor can include- 

  • Determining what assets and liabilities make up your Estate 
  • Locating the beneficiaries of your Estate 
  • Applying for a grant of probate if required
  • Managing any funds that are to be held on trust for minor beneficiaries
  • Liaising with an accountant regarding any tax implications. 

It is usually recommended an Executor engages a solicitor to assist them in their role as some elements of the Executor’s duties, including applying for grant, are quite technical.  Should an Executor choose to engage a solicitor, they should not incur any legal fees or out of pocket expenses as these fees are paid out of the Estate before it is distributed to the beneficiaries. 

In your Will you can provide for your beneficiaries in a number of ways.  Some examples include providing specific gifts to people or charities, providing funds to beneficiaries to be held in testamentary trusts for taxation or protective purposes or dividing your estate between certain beneficiaries. 

In considering who should be a beneficiary of your Will, there are variety of factors that need to be considered including the size of your Estate and how your assets are held. Funds in joint accounts and properties in joint names do not necessarily form part of your estate and therefore are not distributed to your beneficiaries.  Whether these assets are held as joint assets or assets in common will determine if they form part of your Estate or become solely owned by the surviving holder.  Beneficiary nominations with your superannuation fund will also impact whether or not superannuation funds and insurance policies attached form part of your estate.    

WHO CAN CONTEST MY WILL AND HOW DO I PREVENT THIS 

See a solicitor 

The people who can contest your will are as follows: 

  • Spouse (married or De facto) 
  • Child 
  • Dependent 
  • Anyone who thinks they have a claim on your estate. The person may or may not be related to you.  

The likelihood of success of any claim depends on a number of factors and a solicitor can advise you on this.  A solicitor can also provide strategies as to how best minimise potential claims in the event you are not wanting to provide for someone who could make a claim. Sometimes it is more important to put a clause in your Will excluding a person than it is including them.  

Speaking with a solicitor about how to distribute your assets upon your passing can have the following benefits: 

  1. Reduce the likelihood of someone contesting or challenging your Will; 
  2. Ensure that all of your assets are covered in your Will and the possible protection of your assets through trusts established under your Will; 
  3. Ensure hat family heirlooms or items of sentimental value are passed to your intended beneficiary; and 
  4. Provide advice on what happens to assets that do not fall within your estate such as superannuation benefits. 

TESTAMENTARY CAPACITY 

In order to make a Will, you must have testamentary capacity.  To have capacity, you must be able to understand the nature and effect of the document they are completing and the nature and extent of their estate. If someone has a disorder of the mind such a dementia, Alzheimer’s or an Acquired Brain Injury they typically do not have capacity, however a solicitor can verify this and people in early on set may still have capacity.  The purpose of raising testamentary capacity is simple – if you have been putting of making a Will, you really need to think about doing it sooner rather then later.  Once you have lost capacity, you can not make a Will and your Estate will be distributed as per the legislation. This could be very different to what you would have chosen, if you had the option. 

SHOULD I MAKE MY OWN WILL  

The simple answer is NO.  One key reason for this answer is, during my experience as an Estate’s solicitor, I have not come across a single home-made Will that has not had a problem and required additional work for probate. 

Preparing your own Will by using a generic do-it-yourself ‘Will kit’ is not recommended. A Will must follow a strict legal format, otherwise the Courts may decide it is not valid. If your Will is thought to be ‘not valid’ then your assets will be distributed according to a predetermined formula and not as you intended or wished. 

If you are not legally qualified to prepare a Will, then you risk making mistakes, creating uncertainty or losing opportunities for good estate planning. 

In addition, unnecessary costs and delays in administration can result from problems associated with home-made Wills. It is easier and cheaper to ensure that your Will is correct whilst you are alive, than have your Executor try and fix it after you die. 

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