Alison Mitchell, Senior Lawyer and Practice Manager, answers all your important questions about Wills.
Q. What is a will?
A. A Will is a legal document that states how you would like your assets to be distributed when you die and the person or people who you would like to be responsible for carrying out your wishes.
Q. Why do people need a will?
A. People need a Will to ensure the people or organisations they want to benefit after they die are in fact the people who do benefit. Without a Will, there is no way of guaranteeing this will happen. Life can be unpredictable and none of us know what may happen at any time, so it is important to have a valid Will to ensure your affairs are in order and your wishes clearly set out. Having a Will can minimise the likelihood of disputes against your estate. If you die without a Will, or without a valid Will, you are said to die “intestate”. In these circumstances, the relevant legislation sets out a formula for how your estate will be distributed and to whom. This may be very different from what you would have wanted.
Q. Who can make a will?
A. A Will can be made by anyone aged 18 years or older so long as they have mental capacity to understand what they are doing in making a Will. A person under 18 years of age can only make a Will if they are married or obtain a Court Order authorising them to make a Will.
Q. If people don’t have a lot of assets do they still need to make a will?
A. Yes, everyone should have a valid Will. One reason people give for not having a Will is their perception that they don’t have anything of value to leave when they die. Many people are however surprised at what they have accrued during their lifetime. Ultimately few people actually die without any assets to their name. You could have superannuation and often a death benefit associated with your superannuation which can be significant. Your financial circumstances will change many times over your lifetime- whilst you may have few assets at the time you make your Will, this could be very different to your financial situation when you die.
Q. What is the best way to go about getting a will?
A. Make an appointment to meet with a Lawyer who practices in the area of Wills & Estates who will be able to provide you with advice specific to your circumstances. There is not one type of Will which is appropriate for everyone. Sometimes a simple Will is appropriate but in other cases, a more complex Trust Will might be appropriate in providing possible asset protection and be a tax effective strategy. A Lawyer who is familiar with this area can draft a Will which is appropriate for your individual circumstances.
Q. How often should a will be updated?
A. A Will should be reviewed regularly and consideration given as to whether changes need to be made. As circumstances in life change, so should your Will. In general terms, a change in your circumstances, your executor or beneficiaries circumstances may justify the need to vary your Will. Particularly changes through marriage, varied living arrangements, the birth of children, separation, divorce or remarriage all warrant a Will being reviewed and updated. A change in the assets you have may also cause you to consider a different distribution to what your previously considered under your Will.
Q. What is an executor’s role and what should people consider when choosing one?
A. The Executor of your Will is responsible for carrying our your wishes after you die. Their role is to manage your estate having regard to your Will and to protect the assets. It is important to choose a person or people who you trust completely to carry out this role. The Executor is responsible for a number of tasks including (but not limited to) arranging the funeral, locating the Will, ascertaining the size of the estate and taking control of the assets and then ensuring assets are distributed in accordance with the Will.
Q. Can a lawyer offer advice if people feel pressured by family regarding how to divide up their assets in a certain way?
A. A Lawyer can give you an unbiased and objective opinion on the process you should follow and different considerations in making your Will. It is important that you are not pressured or unduly influenced in any way to make a Will which does not reflect your wishes. Wills can be challenged in certain circumstances, one of these being if it is alleged that the Will Maker was unduly influenced or pressured by another person when making their Will. Your family and friends do not need to know about the content of your Will before you die. If you are feeling pressured, an experienced Wills & Estates Lawyer can provide you with advice on how best to manage the situation to ensure that the Will you make ultimately reflects your true wishes.
Q. Anything else you would like to add …
A. Making sure your loved ones are provided for is far too important to leave to chance and the consequences could be disastrous if you die without a valid Will. Dying without a valid Will means your assets will be distributed in accordance with legislation. The result being that your assets may pass to someone who you didn’t plan to benefit and someone who you would have wanted to benefit may receive less or in fact nothing. A properly drafted Will reflecting your wishes will ensure nothing is left to chance.