Why do I need a Will?
In Australia, a well-drafted Will provides clear instruction for the distribution of your Estate and other assets upon your death. Having a Will helps your family and beneficiaries to avoid the stress, uncertainty, and expense which can arise when a deceased person does not have a Will and they will have to make important decisions about your personal affairs as well as financial affairs without clear directions.
A Will also allows you to express your wishes with regard to things such as burial instructions and the nomination of a Guardian to care for any dependents you may have at the time of your death. The nominated Guardian can ensure your personal effects and family heirlooms are given to your loved ones upon your death. You can also nominate a Trustee in your Will who can administer your affairs.
Making a will allows you to have peace of mind and the opportunity to state:
- Appoint and name the parental guardians for your children/s;
- Set up a trust to support young children or a person with disability;
- Express your wishes regarding your funeral and memorial service;
- Express your wishes in regards to the distribution of your superannuation
- Giving money to charities and foundations of philanthropy.
Powers of Attorney
A power of attorney is a document where you give someone else the legal right to look after your affairs and Estate matters for you.
It's important to nominate someone that is trustworthy, financially responsible, and likely to be around when you need them.
What happens if I don’t have a Will?
You are not required to have a Will in Australia, but if you die without a legal Will you leave what is known as an "intestacy". This means your Estate is managed according to the Intestacy Rules under State Legislation and your personal wishes may not be met. In Queensland, your Estate is dealt with under the Succession Act 1981.
It also means that you have no control over who distributes your assets.
When should I review my Will?
The terms of a Will rarely endure for a person’s lifetime and a Will should be reviewed every few years to ensure its terms still reflect your wishes. You should also make sure to update you Will in any case you personal circumstance or financial circumstances
You should also review and update your Will in the following circumstances:
- You get married
- You get divorced or cease to live with your partner
- You enter into a de facto relationship
- You have children
- A person named in your Will as an executor or beneficiary dies
- You have acquired substantial assets
Is my Will valid?
The effectiveness of a Will depends on the quality of its preparation. A Will is a legal document which needs legal advice and experience to go with it. It must be clear and concise and conform to numerous legal drafting rules.
In Australia, a will generally needs three things to be valid:
- It must be in writing (whether handwritten, typed or printed);
- It must be signed and your signature must be witnessed by two other people who also need to sign the will;
- You must have the mental capacity to make a valid Will. This means that you are not suffering from a disorder of the mind.
If you do not have a Will at the time of your death, there is no certainty that your assets will be distributed to the persons who you wish to benefit from your Estate. For this reason, we suggest you make a Will to ensure your estate is distributed in accordance with your wishes. Speak with our experienced Wills and Estate Lawyers today.