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Your Will

What is a Will?

A Will is a document that sets out your legally binding directions on how to divide your personal assets on your death. Your personal assets are known as your estate. Your Will can only give away what you own in your sole name. A Will cannot give away assets that are owned jointly with another person.

There are a number of things to consider when making your Will.

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You need an Executor

Your Executor is the person you appoint in your Will to carry out your wishes as set out in your Will.

After your death, your Executor may need to apply to the Supreme Court for a Grant of Probate to be given lawful authority to administer your estate. Your second choice of Executor (called your Substitute Executor) administers your estate if your first choice of Executor is unable or unwilling to take on the role. Where you are in a relationship with another person, we suggest that you consider both appointing the same people in your Wills to be your Substitute Executors.

You may need to consider guardians for children under 18 years

Who would you want to have the daily care and control of any children you have under the age of 18 if you both die? For example, you might decide to appoint your Substitute Executor as your Guardian. You will also need to consider whether the Guardian is to be involved in the financial administration of the estate.

If you appoint more than one Guardian, it may be best for them to be from the same household. If they are to have the daily care and control of the children, then they should have the absolute right to do so. You may also wish to consider whether your children are to be brought up in a particular religious faith.

Choosing your beneficiaries

Your beneficiaries receive the distributions from your estate upon your death. You’ll need to choose who your beneficiaries are and how you would like your estate to be distributed. For example, you may leave your entire estate to one person or you may divide it up by particular assets or by percentages.

Superannuation

Superannuation is not an asset of your estate. Only if the super fund trustee in fact pays the money to your Estate can your Will control the distribution of the funds. While there are procedures to appeal against a decision of super fund trustee, these are complicated and it is wiser to deal with this issue now.

Are there any special instructions to be included in your Will?

Please let our solicitors know if you have any special instructions to put in your Will. For example, you might have special requirements for burial or cremation, or you might have children by another marriage, or you may conduct your own business (personally or through a partnership or company or trust). It’s important to address these in your Will to avoid any issues upon your death, which can be very costly; emotionally and financially.

Preparing for administration of your estate

To make administration of your estate easier, please compile a list of your current assets and liabilities, bank details, financial contacts and so on, and keep this list with your Will along with any special wishes.

Should you be considering a testamentary trust?

If you are likely to be leaving a spouse and/or children considerable assets under your Will and your family members are professionals (such as doctors, accountants, lawyers) or own businesses for example, they may be exposed to negligence litigation, business debts or unwanted actions by other directors. Testamentary Trusts (trusts created under your Will) can assist to avoid such problems by providing asset protection.

In some instances, Testamentary Trusts may assist family members whose, pension or other government entitlements may be affected by a large distribution form an estate.

Testamentary Trusts are also appropriate options when you are concerned about leaving assets to a Beneficiary who is a spendthrift, who may later become bankrupt or possibly suffer a marriage breakdown or even turn to crime.

You need to consider your funeral, cremation and organ donation options

It is a good idea to discuss and share your wishes with your family and/or your executor. Although ultimately it is your decision, having discussions with your loved ones can save much anxiety later.

It may also help to consider all of these important issues with your accountant and/or financial planner. Remember, once you have made your decisions, you will have made a plan for your family's future that will cover most of the possible outcomes.

And remember, you can always change your Will later if circumstances require it.

Would you like to see a lawyer experienced with Wills? Give us a call and we can arrange a meeting.