Why do I need a Will?
When you die it is important that the things you leave behind go to those people you would like to have them, whether it be a favourite brooch to a friend or a substantial gift to a child, grandchild or a charity. This is unlikely to happen unless you leave behind a legitimate Will. |
A Will is a legal document, which sets out who you would like to receive your property and possessions after you die. It is particularly important if you leave behind children who are dependent on you, as they may not continue to be supported unless you nominate this in your will. Parents of young children need to carefully consider how and by whom they would want children cared for should the parents die while the children are still young.
If you die without leaving a valid Will, your assets will be distributed according to a standard formula, which usually means that your assets will pass to family members such as your spouse or your children which may be not what you would have chosen.
If you have a complex family arrangement e.g. you are separated and have a new partner but have not yet married, or you have children from different relationships, or stepchildren, or if you die with no spouse and no children, the standard formula may not result in your wishes being met. Therefore, in such cases it is vital that you make a Will if you want to leave gifts to particular people or charities.
As certain terms in your Will can be cancelled if you marry and or divorce it is important to make a new Will if you marry, divorce, are separated for a long time or if one of your beneficiaries dies.
Changing your Will
You can change your Will whenever you like but there are legal means to do so – you can’t just change your Will by crossing something out and writing something different. If you want to make a major change to your Will, then the best approach is to make a new will. If you want to make a minor change, you’ll need to make a codicil, which is effectively an authorised amendment to the Will, in writing and signed and witnessed by two people.
Beneficiaries
The people you nominate in your Will to receive your property and possessions after you die are called ‘beneficiaries’. You may nominate any persons you so choose as your beneficiaries. However, by law in most countries you have a general obligation to provide adequately for your spouse or de facto partner, your children, and any other dependents. If you fail to do so, they may challenge your Will and bring a claim against your estate.
If there is any likelihood that your Will maybe challenged, then you have a responsibility to take steps to minimise the risk of this happening. This includes adequately providing for those for whom you have an obligation to provide and talking to those around you so that your intentions are well known beforehand. You could also consider having those who may challenge your will sign a document stating that they will honour your wishes, and writing a separate letter and or making a video explaining the back ground and circumstances as to why you made the decisions you did.
Executors and Trustees
In your Will you also need to nominate people to manage your affairs after you die and to administer your Will. It is important to give due consideration to whom you nominate to these positions as you are entrusting them to carry out your wishes with no bias, favouritism or jealousy. It is also important to check that anyone you nominate is comfortable taking on the responsibility of administering your Will. It is often a good idea to appoint someone younger than you, or to nominate one or more substitute (or alternative) executors, in case the ones you have appointed die before you do.
The person or people you nominate to administer your Will are called the executor and the trustee.
It is usual to choose one person to perform both roles, but in most countries you can name different people as executor and trustee, and you can name as many executors as you like. Most people appoint two executors or an executor and an alternative executor in the event that one executor is not in a position to act or dies before the other does. If there are two executors appointed then in Australia they both have to sign documents (that is to act jointly) unless one chooses not to act, so it may be preferable to nominate an executor and an alternative executor. (Note: In Australia, it is different for a Power of Attorney and Enduring Guardian, where you can nominate whether the people you appoint act jointly or severally).
Making a will
In addition to the considerations already mentioned, before making a Will, you also need to detail all your assets e.g. property, bank accounts, superannuation and investments such as shares, as well as your liabilities. Even if you are leaving all your assets to one beneficiary, having a list makes the executor’s job much easier and allows your estate to be settled with minimal fuss.
A valid Will must be:
o in writing (either handwritten or typed),
o signed by you, and
o witnessed by two other people who need to sign the Will stating that they have witnessed your
signature.
Although a document which you have drafted yourself may be taken as a legal document, there are many pitfalls in this approach and a possibility that your Will may be declared invalid. It is highly recommended that people use a solicitor to draw up their Will. (See the references at the end of this article).
Storing your Will
Once your Will is complete you need to always keep your Will in a secure place such as in a safe or with your solicitor. If your Will is misplaced, it cannot be effective and you will be deemed to have died intestate (without a will). You also have the option of leaving a certified copy of the Will with your executor. At the very least, your executor should be advised of the location of the original Will.
Should you feel it necessary to explain your intentions in more detail, you may give your executor a letter of instructions separate from your Will. While your Will becomes a public document, your letter of instructions remains a private document between you and your executor unless your will is challenged, in which case it will likely be used in court proceedings to show why you made certain decisions.
Further Information
Further information may be found at the following websites:
https://www.lawsociety.com.au/community/publicationsandfaqs/Makingawill/index.htm
http://www.tag.nsw.gov.au/what-is-a-will.html
For UK References click here.
Anne McR. Australia
NOTE: unless otherwise stated, the information in this document is based on the laws of New South Wales. People living in other places are invited to make their own inquiries. This document is for general information purposes only and does not constitute legal advice.
If you die without leaving a valid Will, your assets will be distributed according to a standard formula, which usually means that your assets will pass to family members such as your spouse or your children which may be not what you would have chosen.
If you have a complex family arrangement e.g. you are separated and have a new partner but have not yet married, or you have children from different relationships, or stepchildren, or if you die with no spouse and no children, the standard formula may not result in your wishes being met. Therefore, in such cases it is vital that you make a Will if you want to leave gifts to particular people or charities.
As certain terms in your Will can be cancelled if you marry and or divorce it is important to make a new Will if you marry, divorce, are separated for a long time or if one of your beneficiaries dies.
Changing your Will
You can change your Will whenever you like but there are legal means to do so – you can’t just change your Will by crossing something out and writing something different. If you want to make a major change to your Will, then the best approach is to make a new will. If you want to make a minor change, you’ll need to make a codicil, which is effectively an authorised amendment to the Will, in writing and signed and witnessed by two people.
Beneficiaries
The people you nominate in your Will to receive your property and possessions after you die are called ‘beneficiaries’. You may nominate any persons you so choose as your beneficiaries. However, by law in most countries you have a general obligation to provide adequately for your spouse or de facto partner, your children, and any other dependents. If you fail to do so, they may challenge your Will and bring a claim against your estate.
If there is any likelihood that your Will maybe challenged, then you have a responsibility to take steps to minimise the risk of this happening. This includes adequately providing for those for whom you have an obligation to provide and talking to those around you so that your intentions are well known beforehand. You could also consider having those who may challenge your will sign a document stating that they will honour your wishes, and writing a separate letter and or making a video explaining the back ground and circumstances as to why you made the decisions you did.
Executors and Trustees
In your Will you also need to nominate people to manage your affairs after you die and to administer your Will. It is important to give due consideration to whom you nominate to these positions as you are entrusting them to carry out your wishes with no bias, favouritism or jealousy. It is also important to check that anyone you nominate is comfortable taking on the responsibility of administering your Will. It is often a good idea to appoint someone younger than you, or to nominate one or more substitute (or alternative) executors, in case the ones you have appointed die before you do.
The person or people you nominate to administer your Will are called the executor and the trustee.
- An executor’s role is to obtain probate, pay your debts, and distribute your assets in line with your Will.
- A trustee administers any trusts set up in the Will e.g. a Testamentary Trust.
It is usual to choose one person to perform both roles, but in most countries you can name different people as executor and trustee, and you can name as many executors as you like. Most people appoint two executors or an executor and an alternative executor in the event that one executor is not in a position to act or dies before the other does. If there are two executors appointed then in Australia they both have to sign documents (that is to act jointly) unless one chooses not to act, so it may be preferable to nominate an executor and an alternative executor. (Note: In Australia, it is different for a Power of Attorney and Enduring Guardian, where you can nominate whether the people you appoint act jointly or severally).
Making a will
In addition to the considerations already mentioned, before making a Will, you also need to detail all your assets e.g. property, bank accounts, superannuation and investments such as shares, as well as your liabilities. Even if you are leaving all your assets to one beneficiary, having a list makes the executor’s job much easier and allows your estate to be settled with minimal fuss.
A valid Will must be:
o in writing (either handwritten or typed),
o signed by you, and
o witnessed by two other people who need to sign the Will stating that they have witnessed your
signature.
Although a document which you have drafted yourself may be taken as a legal document, there are many pitfalls in this approach and a possibility that your Will may be declared invalid. It is highly recommended that people use a solicitor to draw up their Will. (See the references at the end of this article).
Storing your Will
Once your Will is complete you need to always keep your Will in a secure place such as in a safe or with your solicitor. If your Will is misplaced, it cannot be effective and you will be deemed to have died intestate (without a will). You also have the option of leaving a certified copy of the Will with your executor. At the very least, your executor should be advised of the location of the original Will.
Should you feel it necessary to explain your intentions in more detail, you may give your executor a letter of instructions separate from your Will. While your Will becomes a public document, your letter of instructions remains a private document between you and your executor unless your will is challenged, in which case it will likely be used in court proceedings to show why you made certain decisions.
Further Information
Further information may be found at the following websites:
https://www.lawsociety.com.au/community/publicationsandfaqs/Makingawill/index.htm
http://www.tag.nsw.gov.au/what-is-a-will.html
For UK References click here.
Anne McR. Australia
NOTE: unless otherwise stated, the information in this document is based on the laws of New South Wales. People living in other places are invited to make their own inquiries. This document is for general information purposes only and does not constitute legal advice.