Having a legal, written Will is the only way to guarantee that people will receive the items you want them to.

Your wishes with regards to the distribution of your property and assets, and the care of any minor children may not be followed if you die without a legal will.  Those left behind may make those decisions for you, or there may be a government agency appointed to decide what happens to your estate.  Your family, or those you would have wanted to give property to may face additional time, costs and emotional torment trying to settle your affairs once you’ve gone.  Your loved ones you intended to provide for may be left without such financial support.

The future of estates of those who die without a Will are distributed according to the laws of intestacy. For example, most spousal couples choose to leave everything to their partner and then the last surviving partner will leave the assets to any children you and your partner have. However, if you die without a Will, your partner may not receive your entire estate.  There may also be specific items, such as family heirlooms that you wish to preserve, which can be distributed against your intent.

A Will is a legal document that outlines your wishes about the distribution of your property and assets and the care of any minor children, adults with disabilities you care for, or other family members after your death.

• Your funeral arrangements as a Will is often read well after your death.
• Personal derogatory comments about other people.
• Assets and property you do not own or have legal control over.
• Illegal gifts and requests.
• Assets with named beneficiaries.

The beneficiary of a will can be a family member, partner, friend, charity, business, or even a trust. It’s also wise to include a contingent beneficiary in your will, who will receive the assets when the primary beneficiary is dead or unable to receive it.

There are a number of reasons a Will can become invalid and we recommend you always seek professional legal advice on your Will and Estate matters.  The following are just some instances that would make the Will not valid:

• You make another Will,
• You lacked the mental capacity to make the Will,
• Someone else used undue influence or pressure to force you to make the Will,
• The Will isn’t signed and dated by you and two adult witnesses,
• Your personal circumstances change, such as a marriage or divorce,
• It includes assets which are not yours to bequeath.

Superannuation is not usually included in your Will because your super is held in a trust by the trustee of your super fund and, technically, is not an asset that you in fact and in law own.

You need to ensure your super fund is kept up-to-date with instructions as to what you would like to happen to your funds in the event of your death.

A binding nomination instructs your super fund who you want your super to be paid to in the event of your death. If you make a binding nomination, your super fund will pay your account balance to whoever you’ve nominated, as long as your nomination is valid and in force at the time of your death.

There are several types of Wills.  These include:

• Simple Will – These are usually only suitable for Will makers with limited assets who are single, in a first marriage or de facto relationship with children from that relationship only and who have a harmonious family.
• Complex Will – These require a more complicated formula for the distribution of assets. Some of the considerations might include clauses around the right of occupation on a property, providing for children from multiple relationships, dealing with assets which are shared or tied up in trusts or companies.
• Testamentary Discretionary Trust Wills – These types of Wills are even more sophisticated and are usually used when there are significant and varied assets. The Testamentary Discretionary Trust is usually created prior to the death of the testator and lie dormant until the death occurs.  The beneficiary can then decide whether to take their share outright or to use their own testamentary trust to receive their share. These types of Wills are usually used to gain tax benefits through income splitting and streaming. Trusts of this nature can be used to fund specific care for minors such as education.  They are often also used to protect long-standing family assets in the event of a relationship breakdown.
• Mutual Will – A mutual will is a legally binding contract entered into by you and your spouse to ensure that when one of you dies, your preferred beneficiaries are provided for in accordance with your wishes by your surviving spouse. These are often used in blended family situations. They bind you and your spouse to an agreed distribution of your estate after your death and vice versa.

There are laws in place to hold the executor personally liable if they do not carry out what the Will asks for.  Courts can remove an executor who is not following the law, the will or fulfilling his/her duties.

Anyone over the age of 18 who is not blind and has the mental capacity and credibility to give evidence in a court of law can witness a will.  A witness should not be a beneficiary of the Will nor should then be a close relative or spouse of a beneficiary.

The lawyer’s role is to:

• Make sure your Will is valid.
• Prove it was drawn up by you and that you were of sound mind at the time.
• Give advice and assistance on what you might need to include in your Will and who you might like to include.
• Provide advice to an executor you may choose on their role.

The simple answer is as often as you like and we encourage you to revisit it regularly to ensure it still reflects your wishes and that your personal circumstances haven’t changed such as marrying, registering a relationship or divorcing a spouse who was included in your current Will.

Wills should be read and dealt with within 12 months of the date of the deceased.

An Executor is the person who carries out the terms of your Will and manages your other affairs after you die, including settling unpaid debts, notifying relevant people about your death and even filing a final tax return. You can name a family member, friend or even a lawyer to serve as Executor of your estate. Your Will can also state how much they are to be paid for the service, and this fee comes out of your estate. If you don’t name an Executor someone will need to apply to the Court to act as your personal representative or, if no-one applies, the Court will name an Administrator. Although it’s not essential, it’s a good idea to ask the person you’re naming as Executor if they are willing to take on the role.

Your Will must be signed by you in the company of two adult witnesses.  The witnesses sign indicating that they can verify your identity and mental capacity to create a will.  These witnesses should preferably not be beneficiaries or Executors of your estate.  They must also be present in the room at the time you sign the Will.

Though you may want to include burial instructions, it’s best to leave these out since your loved ones will need to make decisions promptly upon your death — they may not have time to look to your Will.

The Executor is essentially the representative for you after you die. Their main role is to finalise your personal, financial and legal affairs.
The main responsibilities of an Executor are to:
• apply for a grant of probate if necessary,
• preserve the assets for distribution,
• identify and gather the estate assets,
• pay any liabilities,
• defend the estate during any legal proceedings,
• manage your tax affairs after your death
• distribute the assets

Although there are options for you to write your own Will using online or do-it-yourself kits there are risks if the document is not properly prepared.  Some of the risks include:

• Multiple people writing Wills can result in questions about the validity of the Will, particularly if different handwriting or pens are included.
• Signing of the Will not meeting legal requirements.
• Overlooking important assets, or including assets which are not legally yours to include, which can threaten the validity of the entire Will.
• High costs to your loved ones associated with sorting out your estate because your Will was not clear.
• There’s usually no legal recourse on those who provide templates or assist with do-it-yourself Wills if something goes wrong.

Wills are very personal, but a Will generally outlines:

• Who you want to receive your assets and property, including identification of names as well as amounts;
• An indication of who you do not want to get assets or property;
• Who you wish to care for your children;
• The person or people you would like to manage your estate distribution, ie the Executor;

It also includes:

• Clearly identifiable information about you including any other names you’re known by;
• Legal terminology to make it clear that this is your Will, usually referred to as Testamentary Intent;