Death is certainly not something we like to think about. Confronting mortality is uncomfortable by any measure, but the importance of making a valid will cannot be underestimated. Perhaps one of the most significant documents you will ever produce, your will ensures that any property or assets belonging to you goes to the right people and places.
It’s understandable that planning for the inevitable can be difficult, so here we delve into why you need a valid will, and steps you can take to ensure your estate is looked after the way you would want.
Why do I need a will?
First of all, answer these questions:
- Do you care who gets your property if you die?
- Do you care who gets your money if you die?
- Do you care who is appointed guardian of your minor children if you die?
- Do you have any burial instructions?
If you answered ‘yes’ to one or all of these questions, then you should probably have a valid will. Wills are not just for the “rich”. Regardless of how much or how little money/assets you have, a will ensures that whatever personal belongings you do have will go to family or beneficiaries you designate. Without a will, these decisions can be made for you.
A will allows you to:
- Choose who administers your estate,
- Control how your assets are distributed,
- If you have a child under 18 years of age, appoint their guardian,
- Give directions for what happens next in terms of the disposition of your body and organ donation, and
- Save your loved ones time, money and emotional energy administering your estate.
What happens if I don’t have a will?
If you die without making a valid will, you leave what is known as an “intestacy”. This means you have not validly disposed of some or all of your assets.
Many people believe the Government takes their assets if they die without a will. This isn’t always true. It should only happen if you have no living next of kin. However, if you die without a will, your assets will be distributed according to a formula. This might mean that your assets do not end up with the person you would have chosen.
Some good information can be found on the state trustees website www.statetrustees.com.au.
What are the requirements of a valid will?
The requirements for producing a valid will varies from state to state. For example, if you are in a de facto relationship, under the laws of Western Australia, this would receive no recognition in the distribution of assets. Witnesses to a will in Queensland and New South Wales may find that any benefits given to them may be invalid. Or, in Victoria, a witness can still be a beneficiary but suspicions may be raised in regards to a person who is both a witness and beneficiary of a will. We recommend you seek professional advice, or do your research on the State Act that is relevant for you.
The following elements must be adhered to in order to create a legal will:
- You must be least 18 years of age,
- You must have an intention to make the will, meaning you want to make the will and you are doing so voluntarily without pressure from someone else,
- You must understand what is in the will, and approve of its contents, and
- Two witnesses must sign, and acknowledge the will in the presence of the person making the will.
It is also important to use clear and explicit language. If you meet these requirements, the will has become valid.
Whilst, there are no requirements that you use a professional to draw up your will, it is advisable that a legal practitioner confirms you have met all the necessities. Another option is a simple ‘Make your own will’ kit available from your local newsagency.
What should I put in my will?
Any property and assets belonging to you! Start big, with your home or other properties, and then work your way to other valuable assets and items that you care about and want to pass on.
Partnerships, companies or properties in which you are a trustee cannot be included.
When should I review my will?
Births, deaths, marriages, divorces and property purchases! Basically, whenever you experience a significant life change it is recommended you review your will and make sure it is up to date and what you still want.
In most States, marriage revokes a will, but there are slight variations, so it’s useful to check what the possible effects of marriage is on a will in your state. When a marriage ends in divorce, in most cases any benefits to a former partner in a will are revoked, but it is also worth checking what this means for your specific situation.
Whilst it’s never fun to think about the inevitable, your will is very important. If you have property that you have been paying off for years or other assets, you want it to go to the right person once you’re gone. For more information or a referral to someone who can assist with your will, please get in touch today.