Wills and Estate Planning
We are happy to prepare your wills and give you estate planning advice.
A will is an important document; however, estate planning makes considerations for other matters that should, but may not necessarily, form part of your estate. It includes instructions for handling matters such as your superannuation, life insurance and other monetary arrangements, e.g. a non-registered mortgage or deed where you have lent money to someone, and they still owe you this debt at the time of your death. These matters are then included form part of your estate and assigned either to a sole beneficiary, or as jointly or share-allotted group of beneficiaries. It can also create a provision or specific exclusion for children from previous relationships and other family members or dependants.
You may have good reasons for creating such provisions or exclusions – as family dynamics are, often than not, varied and complicated compared to other families.
In allowing for these dynamics, well-rounded strategies can reduce the available size of an estate through the use of trusts, mutual will contracts, creating a life interest and other legal avenues to safeguard your beneficiaries' interests. For more information, please refer to Trusts.
The mentioned strategies account for your property in death. You can, and should also discuss an estate plan for situations where you are not able to control your property or make decisions regarding your welfare, e.g. if you suffer a mental or medical impairment, by way of enduring powers of attorney (your property) and powers of enduring guardian/s (yourself), respectively.
What is a Will?
A will is a document which states the people you want to receive the property that you own outright at the date of your death. These people are your beneficiaries. Your property can include everything you own: from your home and land, motor vehicles, money and securities, insurance policies, corporate shares, and personal items including jewellery, pictures, furniture. A valid will assures that your assets are distributed in the way you want after you die.
A valid will is one that is deemed acceptable by the Supreme Court. It is put into effect by a grant of probate. To be valid, your will must be:
1. Prepared in writing: handwritten will suffice however typed and printed is preferred,
2. It should be signed: ideally, your signature will be at the end of the will, and
3. It should be witnessed correctly: two witnesses must be present when you sign your will, and they too must sign in your presence.
If prepared incorrectly, your will may not be enforceable; that is, the court has the power not to grant probate, and your property could be disposed of as if you had not made a will. The court must be satisfied that it unfailingly sets out how you want to distribute your assets.
Should I make a will?
Whether you have you have acquired a significant amount of property over the years or your assets are more modest, if you are concerned about who will receive this property after you die then it is crucial to make a will. It is especially important if you have family or other dependents.
If you are married and have dependents, you should have a will. If a husband and wife should perish together, for instance in a motor accident, it is presumed the older person to have died first. If you, as the younger person, might have inherited property from your spouse – even at that time, have perished – but if you did not make a will your property, including that recently inherited, would be distributed under a rigid formula, or even not at all, regardless of what you might wish.
Information on unclaimed estates
Can I make a will myself?
You can make a will by yourself; you can use a printed will form or use a will kit available from the newsagents. There is no requirement by the Supreme Court that Solicitors must draft a will. However, it may not be in your best interests to prepare your will by yourself.
There have been cases where homemade wills were either unclear, not adequately drawn up or inadvertently incurred a tax liability. These cases ended in court after carrying on for years, causing distress and hardship to the family of the deceased.
In general, Solicitors fees for making a will are quite reasonable considering the peace of mind that follows from having a will professionally prepared. Being one of the most important legal documents you will ever make, it is false economy to try to do it without professional advice.
NSW Trustee and Guardian prepare wills – why not get a one made by NSW Trustee and Guardian at a fixed cost?
NSW Trustee and Guardian can prepare wills in both "straight-forward and more complex circumstances". It does not appear, however, to include provisions for "family discretionary trusts…" focussed on "tax minimisation and asset protection for beneficiaries", prepare "contracts for mutual wills", or prepare "Wills for clients who own businesses except where the client or spousal clients is a sole trader/director/shareholder of a private company..."
How can I make sure my wishes performed?
It would be best if you appointed in your will an Executor: a person who will attend to your affairs after your death. If you desire, you can name more than one person to act as your Executor. Anyone can be appointed to act as your Executor – a spouse or de facto partner, a relative or friend, even your Solicitor – but you should first ask them if they are prepared to take on the responsibility.
An Executor should be someone who is a very responsible person. The Executor must obtain a grant of probate of the estate, and pay any outstanding tax, debts or expenses before attending to the distribution of the estate assets to the beneficiaries named in the will. An Executor who personally covers the costs of administering the estate is entitled to reimbursement from the estate. He or she may also apply to the court for payment for his or her work.
So, if I don't make a will what will happen to my estate?
Dependent on the size, makeup and arrangement of your property, the legal procedures could be complicated and time-consuming, which may lead to expense, create worry and even hardship towards your already grieving family and dependents.
The court and prevailing laws provide a formula which sorts out the entitlement of the property of a deceased person have died intestate - that is, they have not left a will. The method may not equitably distribute assets how you would have preferred.
It is not accurate to claim that the Government takes absolute possession of a deceased person's property if there is no will. This situation can occur in exceptional cases in which no close relatives are located.
If I want to make a change, can I write it on my will?
You are free at any time to amend your will. Should your circumstances change, you can and should change your will immediately. However, you cannot merely alter the will by, for instance, crossing something out on the original and inserting in your new directions.
A separate document annexed to the original will, called a codicil, will state the minor alterations of the original will. Usually, an entirely new will be required where the changes are significant. A valid codicil is signed in the presence of two witnesses; the same as when you have made the original document.
And, what if I were to divorce or re-marry?
If a will made before you married exists, it would be revoked automatically when you do marry, unless the will was made with a particular marriage in mind. It could also apply if it were prepared or stated in general terms that a future marriage expected. If so, it is more likely you will need to create a new will.
Generally, a gift or appointment under a will in favour of a former spouse revoked when a divorce decree becomes absolute. It is also the case in which there is a decree of nullity. It would be in your best interest to make a new will or include a codicil if you are divorced or separated for an extended period.
Can I leave my property to anyone not necessarily related to me?
Yes, but appropriate provision or specific exclusion should be made for your close relatives, including your spouse and children, including biological, adopted or ex-nuptial children. If not considered, they could take proceedings under the Family Provision Act to obtain a family law provision claim.
Where should I leave the original will?
The original document should be kept in a safe place. It is essential to avoid mislaying the document. If mislaid, a revocation of the will may be presumed. You should keep a copy of the original will and make a notation stating the whereabouts of the original. Solicitors will hold wills on behalf of clients, usually at no charge. Here at Southern Legal, we do not charge to keep your documents in safe custody.
It is advisable to tell your Executor the whereabouts of your original will. If you do not want to provide the Executor with the original or copy of the will, you can leave your Executor a separate letter of instruction to contact the Solicitor holding the will.
And a Solicitor helps me how?
A Solicitor can construct a will that will be in your best interest because he or she can:
(1) Make sure your will is going to be valid – that is, accurately drawn, signed and witnessed;
(2) Make sure that your instructions are expressed clearly in the will;
(3) Advise you regarding the adequate provision, or exclusion, for your spouse and children, or any former spouse or dependents;
(4) Advise you of any possible liability for capital gains tax which might result from provisions you intend to make in your will; and,
(5) Give you advice on choosing a worthy Executor, the Executor's right to be paid for his or her time, and any considerations to minimise issues in administering your estate.
If you feel your situation requires more information regarding this area of law,
please feel free to contact us today for a free consultation and quote.