I am often asked, “Do I need a lawyer to make a Will?” As a lawyer, I would say, “Of course you do!”
In reality, if you know how to change a tyre, you may not need a mechanic. But, if you don’t know how to change a tyre or, if you try it yourself and put it on back-to-front, you may need that mechanic after all. It’s the same for your Will. If you get it right, no problem. But, if you get it wrong, not only is it a problem, you won’t be here to fix it. That might be a good reason to get a lawyer to do your Will.
A lawyer can also help you properly deal with all those things you think you own, but you may not really own. What you think you own in superannuation, a company or a trust, is not always yours to give away in your Will. A good lawyer can help you to effectively deal with those assets.
The other question often asked is, “Why do I need a Will?”
Another good question. Let me give you some thoughts on why you should not only have a Will, but one prepared by a good lawyer.
1. So you can appoint an executor.
If you don’t have a Will, you won’t have an executor. That means that upon your death, someone may need to apply to the court to be authorised to administer your estate, which comes at a cost to your estate. A good lawyer will ensure that you appoint an appropriate executor, or executors, so that such costs may be avoided.
2. You might own more than you realise.
If you’re a younger person, you may think you don’t own anything and therefore don’t need a Will. A good lawyer will point out that if you have ever been in paid employment, then you will most likely have superannuation, which may have an insurance component. If you die without a Will, you won’t have an executor, which causes problems when it is time to access any superannuation death benefits.
3. To determine who your assets go to.
If you die without a Will then the intestacy rules, not you, decide who gets your assets. If you die with a spouse and children, under the intestacy rules, your spouse may not get the whole of your estate which may cause financial stress for your spouse.
4. To prevent claims.
Carefully considering the way your assets are distributed after your death may avoid claims against your estate. A good lawyer will advise you as to whether the proposed division of your assets is fair and equitable.
5. To say who cares for your dependents.
A good lawyer can ensure your Will includes a provision which appoints a guardian or guardians to care for your infant children.
Sometimes, the way you distribute your assets can reduce the tax paid by your estate. Not having a Will, or a Will that does not carefully put in place a tax-effective estate plan, might mean someone pays more tax. It is definitely worth your while to find an experienced lawyer to prepare a tax-effective estate plan.
If you think you should make a Will, then the chances are that you probably need one. If you already have a will, it is important to update your existing Will as your life circumstances change.
This article was prepared by Jon Wiedman, Director who heads our team of Wills and Estate Planning lawyers. If you need to make your Will, prepare other estate planning documents, or to obtain legal advice regarding your specific circumstances, please make an appointment with Jon Wiedman at our office on (07) 4637 6300 or alternatively, send us a direct online enquiry.