1)What is a Will?

A Will is a legal document that outlines how you want your estate to be distributed when you die.

Wills are not just for people who own property or have lots of money. We all need a will.  Having one allows you to:

• appoint a person you trust to carry out the instructions in your will (your executor)
• provide for the people you care about
• leave particular items to certain people
• leave any other instructions you may have (for example, about your funeral arrangements)
• express your wishes about who will care for young children should you die prematurely
• make a gift to charity.

When there is no Will doubts and difficulties arise simply because there is no evidence of the deceased person’s wishes.

2) Why is it important that I have a Will?

If you die without a Will you don’t have any say about how your estate is distributed.

The term ‘dying intestate’ occurs when a person dies without a will.  According to the rules of ‘intestacy’ in this situation the estate will be distributed to the deceased’s relatives. This may be very different from what you wanted (or intended to happen).

Dying ‘intestate’ can also cause complications, delays and extra costs for those you leave behind. What’s more, if you die intestate and you don’t have any relatives closer than a first cousin, your estate will go to the government.

3)Who can make a Will?

Anyone over 18 can make a will as long as they have mental capacity.

If there is any doubt over the will makers’ ability to make a Will, an assessment of their legal capacity needs to be made by an appropriate person, such as a doctor, psychologist or psychiatrist.

4)How do I make a Will?

Making a Will can be a simple process although this depends a lot on your personal circumstances.  Most people think they are ‘uncomplicated’ although this is increasingly rare.  Lawyers skilled in estate planning are best situated to offer advice about what kind of estate plan will meet your needs and personal circumstances best.

5)Can I use a DIY Will Kit?

You can and these kits are a ‘cheap’ option.  However, these kinds of Wills (along with those prepared online) carry many risks.  The most common risk (and we see this too often), is that the DIY is incorrectly executed and is consequently deemed invalid.  Essentially, if this happens you die intestate and the rules of intestacy apply.  Your wishes may well be ignored and the whole distribution of your estate can be a long, drawn out and costly experience for your beneficiaries.

Of course, DIY Wills don’t come with the reassurance that seeing an expert offers.  Estate specialists will work in conjunction with tax professionals and they will also advise you on any tax issues you need to take into account when drafting your will.

6)How long will my Will last?

Your Will lasts until you die, unless you change it, make a new one or revoke (cancel) it.

It is important to be aware that a marriage will also revoke a Will (unless the will was made anticipating that particular marriage). On the other flip side, if you have separated or have recently divorced, you need to update your Will.  Failure to do so may well result in your former spouse benefiting from your estate even after you have undertaken a property settlement.

It is important to update your Will if your circumstances change.  The big ones include the birth of children or grandchildren or, in the event of the death of your partner

7)Who should be appointed as my executor?

The executor is the person named in your Will who will be responsible for dealing with your estate after you die.

This person needs to be over 18.  Ensure that they are trustworthy and are prepared to take on this responsibility.  If you wish, a professional such as a solicitor, can be appointed for the job.

8)Where is the Will kept?

Most solicitors will keep the original Will in safe custody for a client for no charge.  We even have special fire safes designed just for this purpose.  This is the safest option because if a Will disappears it is assumed that the testator tore it up for the purposes of revoking it.

If you do decide to take it with you, we recommend it is kept in a safety deposit box in a bank, or in a safe place at home. It is a good idea to keep a signed ‘copy’ with your personal papers, along with a note explaining where the original Will is.   Furthermore, it is a good idea to advise your executor where the original Will is.

9)Can I change my Will?

Your Will can be changed at any time as long as you have mental capacity. It is important to note that you cannot change your will by crossing out something in your Will and initialling it, or writing something different in its place.  To do so may cause your entire Will to be invalidated; or, at the very least, may mean that the change is invalidated.

10)Can my Will be challenged?

While all Wills are at risk of being challenged, most commonly a Will is challenged on the grounds that it is not valid. DIY Wills, because of issues related to their execution, are most vulnerable to this.

Other reasons may include:

• It was not the deceased last Will (there is a later dated will in existence)
• It was not properly signed and witnessed
• The Will maker did not have mental capacity when it was made
• The Will was changed or altered after it was originally signed,

or,

• The will maker was forced or influenced into making the Will.

Certain categories of people (mostly family) can also contest a Will if they believe they weren’t properly provided for in the Will. This is called a ‘family provision claim.

Having your will made by a solicitor will lessen the chance of a successful claim occurring.

Scenario: Mrs Smith married Mr Smith who had two children from a former marriage. Mrs Smith had no natural children of her own. Mr Smith predeceased Mrs Smith with Mrs Smith dying several years later. Are the children of Mr Smith entitled to make a claim against the estate of the Mrs Smith?

The children of Mr Smith became the legal step-children of Mrs Smith at the time of the marriage. A step-child may be entitled to make a claim against the estate of their step-mother or father pursuant to Section 6(g) of the Inheritance (Family Provision) Act 1972 (SA), if they are “a child of a spouse or domestic partner of the deceased person.”

We must then ask the question; because Mr Smith had predeceased Mrs Smith, could Mr Smith’s children still be classified as children of a spouse or domestic partner of Mrs Smith? The answer is no. A marriage or domestic partnership may be terminated in two ways, firstly through the divorce or the formal breakdown of the relationship and secondly, through the death of one of the parties. A requirement of being a spouse or domestic partner under the Inheritance (Family Provision) Act 1972 (SA) means you need to be legally married or together at the date of the death of the deceased.

As a result of this definition we can determine that the children of Mr Smith would not be eligible to make a claim under this provision because, although Mrs Smith and the biological father were married, they were not married at the date of Mrs Smith’s death, because at this time she was in fact a widow.

Therefore, it is prudent to seek advice from a solicitor in the event of the death of a family member. A solicitor is best equipped to provide you with appropriate advice related to the effects a death may have on your estate and how to best to structure your affairs in order to ensure your step-children are included in the division of your estate, or alternatively, to minimise them from making a claim against your estate. For advice on Wills and Estate matter contact myself, Maddalena Romano, Greg Welden, Jason Coluccio or the team at Welden & Coluccio Lawyers.

Download our brochure titled ‘The Will’ here.

There is a common misconception that estate planning is just something that wealthy people need to do.  Wrong.

While anyone with a lot of assets and capital behind them certainly needs a comprehensive estate plan, it is also important that ordinary Australians have one too.

“But I’m not worth much dead.” I hear you say.

On the surface this may be seem to be the case.  However, if you have ever worked, it is highly likely that you will have some Superannuation squirrelled away and possibly even death benefits that would be paid out upon your death. In short, in death you probably are worth something.  Add to this the reality that most ‘average Australians’ also have equity in their family home along with other investments and you have a strong case for needing an estate plan.

“But I have a Will, surely that is enough?”

It might be, but chances are it may not be enough to ensure that your estate will pass onto your loved ones in the manner that you wish.

At Welden &Coluccio Lawyers we take the time to determine what estate assets and non-estate assets you own.  It is common for people to believe that they own a particular asset only to discover that this asset is, in fact, owned by a family trust (and will not form a part of your personal estate).

At some point in the future you will die.

Death (along with taxes) remains one of the few things in life which you can predict.   While this is hardly a revelation it is a truth that too many people ignore, especially when you remind them of the importance of having a Will and estate plan.  In fact, the question, “have you got your Wills sorted?” is too often followed by a dismissive shrug and the words, “Nah, but I don’t really need one.”

Truth is most people who walk through the doors of our office, have a very real need for a Will.  Don’t believe me?  Read on for our “Top 10 Reasons Why You Need to Get a Will”.

1. You have a Superannuation Fund

Chances are, even if you don’t have a lot of assets, you probably have something in your Super fund.  More importantly, and particularly for the twenty-somethings, you might easily have a half a million dollars in death benefits.  Fact is; our younger clients (the ones most likely to put off the business of getting a Will) are probably worth more dead than alive.  Even though you think you don’t have assets, you probably do.  It is your right to say to where these assets go, should you die unexpectedly and a Will is the best way to do this.

2. It Has Been a While

You may have a Will, but it was drawn up a while ago.  Too often we ask clients about the age of their last Will and they smile, telling us that it was only drawn up a ‘little’ while ago, only for us to discover  that the Will in question is actually ten or fifteen years old.

Wills must be reviewed at least every five years.  Furthermore, if you make a significant life change (marriage, death of a spouse, birth of a child, purchase of property), you should definitely review your Will to ensure that it still meets your needs or that the Will is revoked by law.

3. You are a Parent

When you become a parent it is easy to be distracted by what is in front of you at that time (nappies, sleepless nights, increasing cost of education).  However, what would happen should you die unexpectedly?  Who would take care of your children?  How would you provide for them financially?  How can you ensure that, in the event of your death, your children will still have the opportunities you had dreamed for them?

A Will is the best place for you to record these wishes.  It is also a great starting point for the discussion of related financial matters that might include a need for life and permanent disability insurance or the creation of a testamentary trust as a means to manage and safeguard assets while maximising available taxation advantages.

4. You Want to Safeguard Assets Beyond the Grave

More and more families are coming to us for legal advice express a desire to safeguard their estate from the partners of their children (especially in the event of divorce).  While not all Wills have the capacity to do this, a solicitor skilled in estate planning, can create a type of Will called a Testamentary Trust that can do just this (and more).

5. You Don’t Want to Die Intestate (You actually want to have a say in what happens to your assets after death).

If you die without a valid Will you die ‘intestate’.  In simple terms this means that it is up to the government to decide who your assets will go to.  Usually, assets are distributed to your nearest family members.  However, if none are found, then quite simply the government will keep it for themselves.  The latter especially is a pretty horrifying thought (I mean they got enough out of you while you are alive).

A valid Will is the only way that you can state who has access to your estate following your death.

6. You own property or have an investment portfolio.

If you own property or have an investment portfolio, it is crucial that you develop an estate plan to determine what will happen to these assets following your death.  A good lawyer will not only assist you to identify who the beneficiaries will be, but will provide options at the planning stage to help you to manage these investments more effectively while maximising available tax benefits.

7. You Own a Business

If you are the owner (or part owner) of a business it is important that you consider what will happen to that business following your death.  We call this Succession Planning.  A good succession plan as part of a Will can allow for the continued growth of the business after your death.  It can also work to maximise the value of the business to your beneficiaries should you die prematurely.

8. You Recently got Married (or are Living in a Defacto Relationship)

When you get married (or are living in a defacto relationship) it is important to have your existing Will reviewed (or created) in light of this relationship.  At this time, couples often like to consider arrangements for their children (or potential offspring) and express these wishes in a Will.  Blended families, especially those for which each partner brings their own children to the union, bring their own set of complications to estate planning.  In short, if you are newly married and have a child to another partner, it is imperative that you speak to a solicitor promptly in order to protect the rights of your child to your estate (should you predecease your new spouse).

9. You Recently got Separated or Divorced.

Many people make the mistake of believing that separation or divorce makes a Will null and void.  It doesn’t.  If you get separated or divorced, act quickly to have a new Will drafted, especially if you wish to limit your former spouse’s ability to make a claim on your estate should you predecease them.

10. Your Spouse is Now Deceased.

When a spouse dies it can be a testing time.  In all likelihood, the Will that you had while your spouse was alive will no longer work for you in their absence.  During the process of submitting the paperwork for a Grant of Probate, a great solicitor will ask to review your Will and draft a new one according to your wishes.