A ‘Last Will & Testament’ (often simply called a ‘Will’) is a written record of how you would like your assets shared or distributed following your death.
However, making a Will involves much more than just writing down a list of your assets and the people you want to leave them to. It is one of the most considerate things you can do for the people that matter most in your life and it is something that needs careful thought and planning in order to ensure that your wishes may be properly fulfilled following your death.
Do I need a Will?
A common question that we hear is “I don’t own very much do I really need to have a Will?” The short answer to this question is ‘YES’. Regardless of the size of your asset pool, it is important to have a valid Will.
If you die without a Will you will be said to have died ‘intestate’. If this occurs your assets will be distributed according to the relevant State or Territory law. This will, of course, be outside your control and may mean that your assets are not distributed in the way that you would have liked.
Having a Will gives you peace of mind that you have made your wishes clear as to how you want your assets to be divided up and administered following your death.
Regardless of the size of your estate, what you do not want is for costly legal disputes to arise in respect of your assets. Disputes between would be beneficiaries can quickly consume an estate and a properly prepared Will is the first step in avoiding this scenario.
Updating your Will
It is sensible to review your Will periodically. If your personal circumstances change it is especially important to review your Will to take into account those changes.
Important life changes such as marriage, divorce, the birth of children and any change in personal financial circumstances such as receiving an inheritance or buying a property are also relevant milestone points at which to consider updating a Will.
Are there rules about who I can leave my assets to?
While in theory, you are able to prepare a Will leaving your estate to whomever you please, in reality, it is very important to seek legal advice on this point.
Relevant matters may include whether you have any infant children or other dependents. In situations involving blended families or estranged children careful consideration also needs to be given to the likely impact of leaving individuals out of a Will and whether this is likely to lead to a costly legal dispute.
Appointing an Executor
The role of an Executor is a responsible one and while it can be tempting to choose your best friend or eldest child simply because it seems the right thing to do, it is important to consider whether the person you are thinking of naming as Executor has the capacity to carry out the role.
The question of who to appoint as executor is an important decision and something we can guide you on when preparing your Will.
Important matters to consider when choosing an Executor include:
- Who would you like to appoint to manage your estate?
- If you have someone in mind consider whether they are willing to accept this role?
- Is the person you are thinking of suitable for the role and will they have the time needed to carry out the duties involved?
- Is the person you are thinking of likely to outlive you?
- Consider appointing a second alternate Executor as a backup in case your first choice is unable to act in the role. Alternatively, consider whether having joint Executors (two people) to fulfill the role may be a more suitable option.
- Will the person have the confidence and experience needed to do deal with your assets in the way you would like? This question is especially important if you foreshadow a potential dispute over your estate. The Executor needs to be able to act impartially.
- If you do not know anyone suitable consider whether you appoint someone like your accountant or a trustee company to act in the role.
It is important to seek legal advice prior to preparing or updating a Will. A validly prepared, properly witnessed and current document is a good step in the right direction in ensuring that your assets are distributed how you want, and to whom you want, following your death.