DO I NEED A WILL?
Every adult should have a Will. The whole idea of estate planning is to make sure your assets end up in the hands of the people you want to receive them.
A valid Will has many functions:
- Appointing someone responsible to administer your estate after your death.
- Recording your wishes.
- Fulfilling your financial responsibilities after your death such as looking after any dependants and discharging any debts.
- Revoking any old Will(s).
- Stating who you want to benefit from your estate.
Another important aspect of having a valid Will is to avoid leaving an enormous administrative headache. If you die without a Will then your family members will have to apply to the court for permission to administer your estate.
A Will is a selfless act as you will never benefit from your own Will, but you are doing it for the people you love and care about.
HOW OFTEN SHOULD I REVIEW MY WILL?
As a general rule of thumb, you should review your Will very 3-5 years and if a major life event occurs. It is important to remember that your instructions cannot be obtained from the grave so do not leave it too late. If you feel that your current Will no longer reflects your current situation, then it is time to book an appointment with an estate planning lawyer and review your Will.
Below are some examples of events that may trigger a need for you to review your Will:
- Marriage, separation, divorce or entering a new relationship. In Western Australia, marriage and divorce automatically revoke a Will unless the Will contains a contemplation of marriage or divorce clause.
- Death of an executor or beneficiary.
- Growing family: you may have prepared your current Will when your children were little and now you have grandchildren. If your current Will does not include all the people you want to ultimately receive a benefit from your estate, then it is time to review and update your Will.
- Special needs of a dependant: if you have a child or family member who is financially and emotionally dependent on you, then you may want to consider discussing how to protect them and ensure they are cared for after your death.
- Falling out with family members: this is something we strongly recommend you discuss with an estate planning lawyer as each situation differs.
- If you cannot locate your original signed Will after searching for it.
WHAT HAPPENS TO ASSETS ACQUIRED AFTER A WILL IS WRITTEN?
It depends on the type of ownership, location and the nature of the asset:
- If you own an asset with another person as joint tenants, then the asset will pass to the survivor by right of survivorship and not under the Will.
- If you own an asset in your sole name, then it will form part of your estate and will be distributed according to your Will.
- If you own an asset with another person as tenants in common, then you will each own a distinct interest in the same asset. Your distinct interest can be distributed under your Will.
Overseas assets acquired after you prepare a Will in Australia should be discussed with an estate planning lawyer as the answer to this question relies on many factors which would need to be discussed and further information obtained.
WHAT IS THE DIFFERENCE BETWEEN A DIY WILL AND USING A LAWYER TO PREPARE MY WILL?
- Every situation is different: when you go to a lawyer to prepare your Will, you will obtain advice tailored to your specific circumstances and any questions you may have about your Will. It is an opportunity for you to understand the many layers to preparing a Will, the applicable law and potential risks.
- A DIY Will is great if you accidentally get it right. However, ‘you don’t know what you don’t know’. A high level of care is required to make a Will legally binding and a valid document.
- Issues most often surface upon the passing of the Will maker when it is too late to fix these issues.
- A Will prepared by a lawyer will assist in minimising the risk of challenges and future conflict. It will also safeguard your loved ones from the stress of addressing problems
WHAT DOCUMENTS & INFORMATION DO I NEED TO TAKE TO MY FIRST WILL APPOINTMENT?
Below is a non-exhaustive list of documents and information which is useful to have in your first appointment:
- Photo identification
- Previous Will(s)
- A complete list of your assets and liabilities
- If your name on your birth certificate differs to your current legal name, documents to show a change of name
- Details of your proposed executors and beneficiaries (including correct spelling of full legal names and addresses)
- Copies of any trust deeds and variations such as family trusts
- If you have a current EPA and EPG
- Details of your interests in any companies or businesses
- Details of your prepaid funeral plan (if applicable)
- Any Will made in another country
- Final Family Court orders
- Binding financial agreement
- Superannuation binding death benefit nomination details
WHAT IS MY ‘ESTATE’?
Your ‘estate’ is the word used to describe all assets and liabilities in your sole name, or in which you have a distinct interest, when you die.
Assets include items such as a car, house, money in your bank account, clothing, furniture, Refundable Accommodation Deposit, cash and jewellery.
WHAT IS THE ‘RESIDUE’?
The part of an estate that remains after payment of debts, estate liabilities, funeral expenses and any specific gifts named in the Will. It is essentially whatever is left at the end that will be distributed to the residuary beneficiaries.
If you have any other questions and/or would like to discuss your Will with an experienced estate planning lawyer, please contact Lynn and Brown Lawyers to arrange an appointment with one of our estate planning lawyers.
About the Author: Hannah is a graduate of both the University of Western Australia and Notre Dame University, having completed a Bachelor of Arts (major in ‘Law and Society’’ and minors in History and Psychology) in 2016 and a Bachelor of Laws in 2018.
