Why do you need a Will?

To ensure that your assets are dealt with as you wish on your death.

You can leave your assets to any one, however you should make adequate provision for a dependent spouse and/or children.  Failure to do so can leave the estate open to a claim under the Family Provision Act, which means the estate will have to pay to defend any such claim.

What is a Will?

A Will is an official document that contains your instructions as to how your assets are to be distributed on your death.

The person making the Will is called a “testator” for male and “testatrix” for a female.

The persons inheriting under your Will are called the “beneficiaries

The person or persons who undertake all the work to distribute your assets in accordance with your Will are the “Executor/s” (also referred to as “trustees”).

Generally, a valid Will must:

  • be in writing;
  • dated and signed by you on all pages; and
  • witnessed by two adults who have seen you sign the Will, on all pages.

What happens if you die without a Will?

If you die without a Will, you are said to die “intestate” and your assets will be dealt with in accordance with the terms of the current legislation.  Generally, your assets will be distributed in the following manner.

  • if you have a spouse and children, of that relationship, to your spouse entirely. If there are more than 2 spouses, they will share it;
  • if you have a spouse and children from another relationship, the estate is distributed with your spouse receiving a statutory legacy currently $496,181.35 at June 2021, and the personal assets and half of the remainder of the estate and the remaining half  balance of the estate is divided between the children of the previous relationship and the current spouse; Adopted children are included, but step children are not.
  • if there is more than one spouse including a de facto spouse, they receive equal shares. If you are separated and not divorced, that spouse is entitled to a share of the estate.
  • if there is no spouse but children, the children receive the estate equally;
  • where there is no spouse or children, to the deceased’s parents equally;
  • where there is no spouse, children or parents, to the deceased’s siblings equally.  It can then further go down the line to grandparents, aunts and uncles and first cousins. if no other beneficiary is available.
  • If no suitable beneficiary is found, the estate will be given to the State  government.

As you can see, it can become quite complicated and even more so, where there are de facto spouses at the same time as “legal” spouses.

It is therefore very important to have a Will to ensure that you decide who gets what.

Who can make a Will?

Any capable adult can make a Will.  If a person has a mild intellectual disability or is in the early stages of dementia, they may still be able to make a Will.  This will depend on their understanding of the nature and effect of the document.  If a person has this understanding, then they have the capacity to make a Will.  If their capacity is in doubt, an assessment of the person’s understanding should be made by an appropriate person, such as a medical practitioner, psychologist or psychiatrist. The Court  on application may authorise a Will for a person who is otherwise incapable of doing so.

Who should you appoint as your executor?

Your executor takes on the responsibility of obtaining probate of the Will (if necessary) and attends to payment of estate liabilities before distributing the estate funds. You should choose a person who is trustworthy and responsible.

Before you appoint someone, you should be sure that he or she will in fact do all the things that you want. Your executor is legally bound to carry out the written instructions in the Will.

Can you change your mind?

You can easily revoke (or cancel) your Will at any time so long as you are of sound mind. This is best done by way of preparing a new Will.

What happens if  you marry or divorce?

Generally, an existing Will is revoked on marriage, unless the Will is made in contemplation of the marriage.  It is advisable to make a new Will on marriage.

Similarly, certain provisions of your Will become void on your divorce, namely in relation to the naming of your former spouse as executor and any benefits. You should prepare a new Will as soon as possible following separation.

We can assist you in preparing a Will that is valid and advise you generally in relation to the advantages and disadvantages of structuring your Will to optimise the benefit to your beneficiaries.

Information contained herein is of a general nature and is not intended to address the circumstances of any particular individual or entity. Advice from Drake & Associates should be sought if there is doubt as to the applicability of this information to individual circumstances.

Call Drake & Associates now for the right professional advice in drawing your Will to ensure your estate is left to the right people.