There are many reasons to have a Will in place. Many people are prompted by events such as buying a property, getting married or having children, or getting divorced – all great reasons to have a Will in place.
Bear in mind that if you marry, your existing Will becomes invalid, unless it was done in anticipation of your marriage. By the same token, if you divorce you also need a new Will.
If you don’t have a Will, you will be intestate when you die, and your family will have to deal with the complications that follow. The administration of your estate will be more stressful, costly and time-consuming than if you had left a Will. Also, your wishes for your property may not be followed and the likelihood of disputes among your family is increased.
For these reasons, you should always ensure you have an up to date Will that is reviewed every 5-10 years.
Before you see a lawyer to provide instructions on the preparation of your Will, we recommend you do the following:
a) Think about who you want to administer your Will – this role is known as your Executor. People usually appoint a responsible family member who they trust to administer their Will according to their wishes, but there is no requirement for the Executor to be related. Sometimes people appoint their lawyer to act in this role if there is no-one suitable within the family or friends network. It is a good idea to also appoint an alternate Executor in case the first Executor is unable or unwilling to act when required;
b) Bring your identification (passport or drivers’ licence) along to your first conference with your lawyer so you can be formally identified;
c) Bring along your most recent superannuation statement – your superannuation is outside your estate for the purposes of your Will, so it is important to assess whether there is a binding or non-binding nomination in place with your superannuation fund stating how you want your super to be distributed;
d) Bare in mind that if there are any doubts about legal capacity, e.g. if you have any symptoms of dementia or are of advanced age, it may be advisable to obtain a Doctor’s certificate as to capacity from your General Practitioner, to prevent beneficiaries later claiming that you did not have capacity when your Will was done and that it should, therefore, be challengeable. Your lawyer will advise you on this following your first appointment.
e) If you have children, you may like to think about whether you might want to appoint guardians for them, and who these people might be;
f) In regard to family heirlooms, you may like to consider drawing up a letter of wishes to be provided to your Executor for safekeeping with your Will – this will enable these items to be changed without having to change your Will;
g) You should consider at what age you might want your beneficiaries to inherit their share of your estate –we tend to advise clients to push toward an older age such as 30, bearing in mind that your Executor will have the discretion to apply monies toward your beneficiaries for education or housing or travel or other needs at their discretion before your beneficiaries are of the age at which you want them to take control of their portion of your estate;
h) Consider appointing a Power of Attorney for Financial Matters – this means that if you were incapacitated, for example in hospital, that a trusted family member who is appointed Power of Attorney could run your finances and pay your bills while you are unable to do so. The person you appoint needs to be trustworthy and responsible and will be bound by fiduciary duties;
i) Consider appointing a Medical Treatment Decision Maker – this person is then empowered to instruct your medical team about the sorts of treatment you want to have if you are unable to provide instructions. Most people appoint their spouse or another trusted family member to this role, and it allows your medical team to have confidence in making decisions about the sorts of choices that are made on your behalf. You will need to have a discussion with the person you appoint about the sorts of choices that you would want, for example, would you want to be on life support for an extended period etc;
j) You can provide instructions about your funeral and the type of burial you would like if you wish and whether you would want your body returned to Australia if you died overseas;
k) You should also consider whether you want to donate your organs or your body to medical science;
l) Get the full names and addresses of everyone that you want to mention in your Will together before your first appointment with your lawyer;
m) If you have life insurance outside of your superannuation fund, bring along a copy.
Depending on your situation, a simple Will may be all you need to ensure you provide for your loved ones. However, more complex estate planning may be required if your personal circumstances include self-managed superannuation funds, business interests, trusts and blended families.
Disclaimer: This article contains general information only and is not intended to be a substitute for obtaining legal advice.