If I had a dollar for every time someone said this to me I could retire right now.  You see everyone thinks that their circumstances are straightforward and it follows then that they believe that their Estate needs will be easily satisfied with either a “cheap Will”, a blank template where you enter names and addresses; or, even worse, a DIY Will Kit.

Truth is, few Wills actually are straightforward, and a generic Will rarely ‘cuts the mustard’ for most people.  In fact, there are a tonne of situations that can make drafting a Will a complicated process best undertaken by an expert.  Consider the following scenarios and ask yourself if any of these situations apply to you:

–          Have you ever been divorced or separated?

–          Following a separation or divorce have you remarried or have you commenced co-habiting with another person?

–          Do you have children to two or more different people?

–          Are you employed by the government and have superannuation with Super SA?

–          Do you own real estate, wholly or with another person(s)?

–          Have you ever been declared bankrupt?

–          Have your children ever been declared bankrupt?

–          Are you concerned that assets will be lost to children following a divorce?

–          Following your divorce are you concerned about what might happen if your ex-spouse remarries?

–          Do you own a business, wholly or with another person(s)?

–          Do you own shares?

–          Are you a professional and thus open to the risk of litigation (eg any professional, especially Lawyers, Doctors, Accountants and          Financial Advisers)?

–          Do you have children who are minors?

–          Are you uncertain if you have a death benefit associated with your superannuation fund?

–          Do you know who your beneficiary nominated in your superannuation is?

Each of the situations described above requires a high degree of personalisation when it comes to the drafting of a Will.  This is not possible to do with a generic Will and definitely not possible with a DIY Will kit.  Furthermore, some of these situations will necessitate drafting of a Testamentary Trust.  This specific type of Will is best undertaken by an Estate Specialist, with many in the legal profession unskilled in this area.

There are many risks associated with generic and DIY Wills.  In a nutshell they often prove grossly inadequate when it comes to meeting the needs of the ‘average person’, with the potential for unintended errors that may cost your beneficiaries large sums in legal costs.  At Welden & Coluccio Lawyers, we have the know-how to ensure that every aspect of your circumstances is taken into consideration for the protection of your beneficiaries and your wishes.

“My Great Aunt Edna just died and it seems she has listed me as her sole executor. I’m feeling quite overwhelmed and don’t know where to start.”

When a family member or close friend dies it is normal to feel a whole range of feelings ranging from grief to confusion. The news that you have been named as an executor may come as a surprise (although hopefully not), and will certainly heighten these emotions during what is already a busy time.

As a practicing Wills and Estate Specialist, it is not uncommon for me to receive telephone calls from next of kin on the very day that their beloved has died. At this time I like to reassure them that the important thing to do at this point is to spend time with family and friends, make funeral arrangements and (above all) celebrate the life of their loved one. Once the dust has settled, usually a few weeks down the track, is generally the best time to make an appointment to meet with a solicitor experienced in the management of Wills and Estates to discuss what needs to be done.

When a person dies they usually leave behind a Will that specifies what is to happen to their assets upon their death and who are executors – the person (or people) whose role it is to secure and distribute assets of the deceased and ensure the terms of the Will are carried out lawfully.

“What is my job as executor?”

An executor has many important duties when acting on behalf of the estate of the deceased person. They include notifying banks and other organisations identifying who the beneficiaries of the estate are and determining what their entitlements are, paying the liabilities of the deceased and any estate claims (from the value of assets held by the estate) and most importantly obtaining the grant of Probate from the Supreme Court of South Australia (or in another State).

“I’ve heard of Probate but I don’t really know what this is or what it entails on my behalf.”

A grant is the official recognition by the Supreme Court of what document or documents constitute the last Will and the right of the personal representative named to administer the estate of a deceased person.

There are two types of grants: Grants of Probate and Grants of Letters of Administration.

Grants of Letters of Administration are needed where there is no Will or the executor who has been appointed is not able to act for some reason.

All applications for grants must be in accordance with the Rules of Court which govern who is entitled to a grant and the manner in which the application must be made.

“When will I need to do this?”

Whether a grant is needed will depend on the assets of the estate. For example, a bank holding money belonging to the deceased will need to know who that money should be paid and the grant is proof that the person named (executor or administrator) is the person entitled to collect the money on behalf of the estate.

If the deceased owned a substantial number of shares in a company, the company will usually insist on seeing the grant before it will transfer them.

A grant will be required if the deceased owned a house in his or her own nameor held an interest with another party as tenant in common. The Lands Titles Registration Office will not transfer land to another person without a grant. However, real estate owned by the deceased as a joint tenant with another person cannot and will not form the subject of a grant or part of the deceased estate as the surviving joint tenant(s) are automatically entitled to the property.

On the other hand if the deceased had very minimal assets it may not be necessary for the executor or administrator to apply for Probate.

“Wow, now I’m really feeling overwhelmed. What else do I need to know about this process?”

Yes, the process for apply to the Probate Registry seeking a grant of probate or Administration is very complicated and difficult for most lay people. The application may become even more difficult if;

• the validity of the last Will is in question,
• there is uncertainty as to what constitutes the last Will
• the intended last Will has been completed incorrectly (undated or signed wrong).

The list is endless. These problems may create significant delays in dealing with estate assets and finalising the role of the executor. For these reasons, it is always recommended that you speak to a solicitor concerning the Will of a deceased especially if you are named as an executor. Of course the good news is, that in the hands of a Wills and Estate Specialist, this process should seem relatively straightforward from where you stand.

When you are dead, you are dead.  Nothing can be done from the grave to counteract what you should have planned for when you were alive.

In spite of this, too many of our clients leave it until they are in their twilight years before making the appointment to have their first Will drafted.  These are the lucky few in an all too common scenario of people who have delayed drafting a Will.  The unlucky ones never made it to the appointment.

Insofar as excuses go, I’ve heard them all.  However here are the most common ones:

I’m too busy.

Yes, life is busy.  Before you know it that Will you were intending to do when your little one was born still hasn’t happened. . . and the ‘little one’ is now having kids of their own.  Ironically, when your children are young is the time when they are at greatest risk should you die unexpectedly.  I know things are busy at this time.  While you are in the midst of nappies and sleepless nights, it is crucial that you make the time to arrange a Will.  Ultimately, the beneficiaries of your estate plan are your loved ones.  Neglecting your estate plan will not affect you, it will affect them.

I don’t have much money in the bank, so it’s not worth it.

Never assume to be able to predict how your loved ones will react to your passing.  I have seen many estates of nominal values being disputed by family members as a ‘matter of principle’.

Furthermore, a lack of physical funds in a bank does not necessarily equate to having no estate.  If you have ever worked in Australia you will have a superannuation fund.  Your superannuation, while not accessible until retirement, will form a considerable portion of your estate.  Furthermore, attached to this may be a death benefit, a sum which could easily grow the average superannuation fund into six figures.

While a Will does not prevent family members from disputing the distribution of an estate, it will ensure that your wishes are clearly recorded.

I/We can’t agree on our wishes

Estate planning for many people, especially those with blended families, can be challenging.  While this may be the case burying your head in the sand, rather than confronting such a challenge could have disastrous consequences should you die intestate.  I assume you would like to express who you would like to raise your children in this event.  Surely this is reason enough to make an appointment to get that Will drafted.

In the event you are faced with conflicting wishes, it is best not to overthink things.  Once you have determined what you would like your estate plan to be (even if it is different to your partner) you are halfway there.  Write these wishes down and seek advice from a lawyer.  Leave the thinking to us . . .that is what you pay us for.

I’m young and healthy, I’ll think about it later.

This is where I get to rant  about every ‘young’ and ‘healthy’ person that I knew who died young.  I won’t do that.  Suffice to say that life is unpredictable, and alas, accidents do happen.  The kindest thing you can do for your loved ones is to be prepared.  The benefit of addressing your estate plan early on; is the well-rounded advice you can receive on budgeting, wealth protection and taxation.

Do you pay for home insurance annually?  Think of your estate plan as an insurance policy – once it is in place it is always there when you need it. . . which you will (hopefully) later, or sooner if need be.

We see them a lot; Lawyers that is, advertising their cut-price Wills on brightly painted sandwich boards plonked on the footpaths of our suburban streets.   There is an old saying that goes something like, ‘if something sounds too good to be true then it probably is.’

Where Wills are concerned you really do get what you pay for.  In fact, the less you pay the more likely it is that you will be bequeathing problems (as opposed to assets).  While I spend a great deal of time warning people about the dangers of DIY Will Kits, I rarely tackle what is nearly as great a concern, that is the lawyer who has no idea how to write a Will.

“But surely all lawyers can write a Will.” I hear you say.

You’d think that Will drafting is something that would be covered in Law 101.   Alas, it is a topic which receives minimal to zero attention in educational institutions across this country.  Fact is; most Law students graduate without any knowledge (let alone experience) in drafting Wills.  Even more frightening is what I am about to suggest, that too many lawyers are not only inexperienced in Estate Planning, but they have no idea that this is the case (or even worse they don’t care).

You see what many people (and quite a few lawyers) don’t realise, is that drafting a Will requires both expertise and time.  A quality Will, that is one that will continue to work hard for you beyond the grave, is one which is only drafted following a lengthy (and detailed) discussion with the client.  Only once this information has been gathered can a strategy be developed, culminating in a tailored (bespoke) document with you, the client, in mind.  Note that there are no short cuts for expediting this process.  This is something to consider when confronted with a lawyer peddling a cheap Will.  Chances are, what you will get is a very brief meeting followed by a cut and paste generic document (created in a single sitting).   In fact, some of these budget Wills are so bad that they are only a small jump up from a DIY Will Kit.

Unfortunately, this issue is not only limited to the drafting of Wills.  At Welden & Coluccio Lawyers we have inherited many estates from lawyers for whom their limited understanding of Probate Law has led to a mismanagement of the file.  In these situations the story is nearly always the same; massive legal fees and a file that has not moved forward to the point where a Grant of Probate is delayed.  This is certainly the case with a number of the files we have inherited, some with Probate not granted after 4 years, one of which we rectified in a mere 6 weeks.  Too often the cost of this incompetence is absorbed by the client, a fact I find hard to swallow, especially because I know the intrinsic value of having an expert in such instances.

Only an ‘expert’ in the field of Estate Planning and Administration has the knowledge and experience to effectively navigate this extremely specialised area of Law in a timely manner whilst keeping costs to a minimum.

So how does one go about finding a good Estate Lawyer?

Like most things, it requires that you the consumer do some research and be prepared to ask some important questions.  Such research may involve making contact with the South Australian Law Society.  Once they know a little about your needs they can offer you a list of lawyers who are specialised in this area of law.  Be prepared to conduct your own internet research.  Look for a solicitor who is professionally active in this capacity.  They may state this explicitly or, they may blog extensively on the topic, present at seminars and conferences or are involved in various professional committees that relate to this area of law.  Big firms don’t always mean better.  Make certain that the actual person who does your Will is the one who has the passion and the experience for this area of Law.  Remember, the larger firms quite often work on volume.  This may mean that they get the junior solicitor (the one with minimal experience) to do the Wills.   Finally, make contact with a few lawyers.  Ask about the process, time-frame and the costs involved.  Avoid choosing a lawyer based on the recommendation of a friend or family member, especially if their matter was different to your own.  Above all, remember, you want to employ the person with the knowledge and experience to do the job effectively the first time.

Our beloved Maltese terrier, Cooper, died a month ago.  Despite the fact that he was an old man of 14 years, it was still a fairly traumatic experience for the whole family.  Having made the difficult decision to euthanize him, we were next asked, “What would you like to do with his remains?”  Not having experienced, discussed or even considered this before, we had little idea of the options available to us.  After some deliberation we decided that the most fitting thing would be a cremation and burial of the ashes beneath a rose bush.  And so, with the family gathered one Friday afternoon, we planted him in our garden.  The children had some music selected for the occasion and we read a poem that made everyone tear up.  It was simple, but the perfect tribute to our much loved pooch.

This anecdote highlights a certain reality that as humans we are often quite disinclined to think about funeral options for ourselves (let alone our pets).  Indeed, many are adamant in their refusal to discuss the inevitable.  This is fine, so long as you don’t have any qualms about what happens to you when you pass.  But what if you do care?  What if you have clear ideas about what happens to your remains after your death?  How can you ensure that these wishes are communicated so that they may be fulfilled?

Of course the most important thing with regards to these questions is communication.  It is crucial that you have the conversation with your loved ones prior to your death and while you are still able to.  While this is important it is also useful to have these wishes articulated clearly in your Last Will and Testament.  Furthermore, you may even take this a step further and prearrange (and pay) for your funeral and have this noted in your Will.

What do I mean when I say funeral options?

This is a huge question for which I can only provide broad generalisations for.  To begin with you may wish to consider your feelings in relation to organ donation.  Indeed, you may wish to forgo a funeral altogether and donate your body to Science.  Have this stipulated in your Will.

Assuming you want some kind of funeral (as most people do), you will need to consider what this will look like.  The most basic question of course is religious or secular.  With secular funerals nearly anything goes.  However, if you want a religious ceremony, it is important to stipulate what you mean by this.  For example, a “Catholic” funeral could mean anything from a simple service in a funeral chapel (presided over by a Priest) to a full scale Requiem Mass with Rosary, followed by a burial and committal.  Be specific about what you want.

Burial or cremation?

The other important question for most people relates to your preference towards cremation or burial.  In the past, at least in Western societies, burial was the only option available and there were strong religious beliefs to support this.  In choosing this option you may wish to express a desire to be laid in a plot in a certain cemetery in a certain manner.  For example, you may wish to be buried with your spouse and/or children.  In saying this cremation is now a popular choice, considered to be a more affordable and flexible option.  In choosing cremation you may wish to also stipulate your chosen resting place for your ashes.  The obvious options include burial in a garden plot in a designated cemetery, burial in a place of your choosing, kept in an urn with your next of kin, or even scattering of ashes in a place of special significance.  In recent years, some rather ingenious European companies have designed cylinders which you pour ashes into, which (when buried) will grow into a tree.  They have even developed special ‘burial pods’ whereby your loved one is planted in a foetal position inside an egg-shaped capsule which naturally decomposes, again leaving behind a tree.   While these options are not yet readily available, they are no doubt a glimpse into the future.  At any rate, whatever is your wish, if it matters to you, be specific about what you want.

It is important to be aware, when making plans about how your remains will be treated to consider the impact of current legislation in relation to where and how remains (including ashes) can be managed.  For example, it may not be possible to “officially” combine the ashes of more than one person.  Similarly, unusual requests, such as the traditional burial of human remains on a private property will need to be investigated and approved by the appropriate authorities.

What about unusual requests?

You may have clear ideas about your funeral that are a little unusual.  The more famous example is Walt Disney, who allegedly had very specific requests about the treatment of his body after death and subsequent cryogenic suspension.  This is supposedly a myth with his family highlighting that he was, in fact, cremated.  However, other unusual requests which I have included in Wills especially for war veterans, is a ceremony with full military honours.  Your unusual request may be more straightforward than this.  You may simply wish to express a desire for a certain piece of music to be played at your funeral, to be buried in an environmentally responsible casket or have a traditional Irish wake.

While death is by no means the most joyous of subjects, it is important that you are aware that you have a right to say how your life will be celebrated.  A Will, while being the most logical place to express this, can’t guarantee that what you desire will come to fruition.  At the end of the day, what happens will ultimately be determined by what your family decide to do and is limited by the legislative and financial constraints at the time of your death.