Generally, you would expect that your Will would divide up and distribute your assets, such as real estate and personal property, and maybe leave some specific gifts for relatives. You may be wondering, however, whether your Will can deal with other issues relating to your death. In this blog post, we will cover three common concerns: burial wishes, digital assets and guardianship of minor children.
In Victoria, directions in your Will regarding disposal of your remains are not binding on your Executor. We still recommend including these directions in your Will as a record of your wishes that can guide your Executor.
Some things you may like to think about in terms of your wishes are:
- Whether you wish to be buried or cremated;
- Whether there is a particular cemetery or specific plot where you would like to be buried/interred;
- Should you die overseas, whether you would like your body brought back to Australia;
- Whether you would like your funeral conducted in line with a specific religion or in a secular fashion;
- Whether you would like your organs donated to medicine; or
- Whether you would like your body to be donated to science.
If you intend to donate your organs, we recommend registering with DonateLife Australia during your lifetime. We will then note in your Will that you are a registered donor.
In today’s digital age, more and more of our lives are lived or stored online. While your Will obviously deals with your physical assets, what about your digital assets?
Digital assets may include but are not limited to, social media accounts, email accounts, digital downloads (e.g. music and movies that you have purchased), cloud storage and its contents (including photos) and any online memberships, such as streaming services.
At David Davis & Associates, we commonly include clauses in Wills authorising your Executor to access and deal with your digital assets.
Generally, this means closing your online accounts, subject to any instructions you may leave. For example, you might leave instructions for your Executor to download all of your photos from a cloud service onto a hard drive, or to log into your social media accounts to inform your followers of your death.
We recommend keeping a list of your digital assets and their passwords somewhere safe to simplify this process for your Executor. Should you make your Will with David Davis & Associates, we can store this list securely with your Will in our Deeds Register.
Guardianship of minor children
One important thing to consider when making your Will is who will take care of your minor children if both you and your partner were to die. As unlikely as it may be, it is important to be prepared for every contingency.
We recommend appointing one or two people that you trust greatly, such as siblings or parents. We recommend no more than two guardians are appointed at once in order to avoid a ‘too many cooks in the kitchen’ scenario. You can still appoint further alternate guardians to take care of your children in the event that your first choice is unable or unwilling to act.
You can appoint the same person (or people) as Executor/Trustee and Guardian. We can also include a clause in your Will to allow your Trustee to give funds from your Estate to the Guardian to cover the reasonable expenses involved in taking care of your child or children.
Appointment of a Guardian in your Will is legally binding
The appointment of a Guardian under a Will is a legally binding appointment. It is important to remember, however, that this appointment can be challenged in the Family Court after your death.
Any person concerned with the care, welfare or development of the child can make an application for parenting orders under the Family Law Act. Parenting orders deal with the person or people with whom a child is to live, the time a child is to spend with another person, or who has parental responsibility for a child.
Put simply, this means that if you appoint one person as the Guardian for your children (e.g. your sister), another person involved in the child’s life (e.g. your mother) could make an application to the Family Court at a later stage to have more involvement in the child’s life. This includes making an application for sole parental responsibility for the child. While this may be a distant possibility, it is important to be aware that your Guardian appointment will not bind the Family Court in the face of a challenge, particularly where there is risk of family violence.
We know that making these important decisions about your Will can be difficult and sometimes confusing. Fortunately, our friendly team is on hand to assist you with any questions you may have about your Will or any other estate planning questions. Contact us today with any queries or to get started on your Will.
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