Past research by bodies such as the Australian Securities and Investments Commission has suggested that around half of Australian adults do not get around to making a Will before they die.
What this means is that once you pass, in Queensland, your estate will be distributed under the rules of intestacy which are outlined in the Succession Act 1981. Whatever your wishes were for how, and to whom, you wished your estate to be distributed, will not necessarily be followed. It is primarily for this reason that you make a valid Will during your lifetime and whilst you have capacity.
While elderly people and those of high net worth tend to be the most common classes of people to make a Will, it is a process any person of working age should undertake. Once you start earning money and accumulating assets – be that a house, car, shares or other assets – you need to think about how these assets would be distributed should you suddenly die.
While there are plenty of DIY Will kits and online templates available, there are compelling reasons why you should consult an experienced wills and estates lawyer when it comes to making a Will. They can help you avoid common pitfalls and create a legal document that is both valid and reduces the chance that someone will be able to contest the Will after your death.
Key things to consider in making a will
Firstly, your Will must appoint an executor or executors to take care of your estate and carry out the terms of your Will. That person or persons must be 18 years of age or older and not lack the mental capacity to perform the task. It is usually advisable that your executor or executors live in the same state as you.
Next, if you wish your Will to gift specific assets such as the family home or land to one or more of your beneficiaries, it is important to clarify how the asset is owned. If you are a joint tenant of a house, for example, as spouses commonly are, then when you die the surviving joint tenant automatically acquires ownership of the asset. So do you, if you are the surviving joint tenant. This means an asset owned in this way cannot be included in your Will if you are the first to die.
By contrast, if you are a ‘tenant in common’ – meaning each of you owns a separate or distinct share of the asset – then your share of the asset can be included as part of your estate to be gifted in your Will.
Complications arise, of course, in the situation of blended families. If you remarry and become a joint tenant with your new spouse, it is possible your children from an earlier marriage or relationship will be left with very little under your Will (or, at least, your most valuable asset in the form of your house). Similarly, if you are a tenant in common with a new spouse, your children from a previous relationship may end up owning the asset with the new spouse, a situation that may not work for anyone.
Some of the other things your will should address include:
- Your wishes around burial or cremation, as well as other instructions. It should be noted your executor is only bound by a direction from the will-maker regarding cremation.
- Whether you wish to donate your organs for transplant purposes. It is advisable that you tell your next of kin of this wish before you die so that urgent arrangements can be made once you pass. If you are interested in donating your organs after death, you can register to be a donor with the Australian Organ Donor Register.
- Whether a guardian needs to be appointed to care for minor children.
- If you are the beneficiary of a family trust or a discretionary trust, these assets cannot be included in your Will because they are not personally owned by you. However, the trust deed may allow for either transfer of control of the family trust by deed or in your Will. A loan owed to you by a family trust is treated as an asset of your estate.
- Superannuation death benefits generally do not form part of your estate. They are generally distributed by the trustee of the fund in accordance with a Binding Death Benefit Nomination you make while you are still alive, or the trustee may have the discretion to pay the benefit to your legal personal representative (your estate) or directly to anyone or more of your dependants. The exception is if the trustee of the superannuation fund pays the benefit to your legal personal representative (your estate). The benefits would then be dealt with under your Will.
- A life insurance policy owned personally can be paid to your estate to be distributed via your will, or to any nominated beneficiary. If the life insurance proceeds are paid to the estate then they will be included in your Will. Where the policy is part of your superannuation fund, the proceeds will be combined with your superannuation balance to form part of your superannuation death benefits.
- A residue clause to deal with your residuary estate which includes all items of your property not specifically bequeathed under your Will. If you do not have a residuary clause then failed to mention a specific item may mean you die partially intestate, and any property not specifically disposed of is then subject to the rules of intestacy.
Making sure your will is valid
An experienced wills and estates legal professional can assist you to make sure there are no problems with the validity of your Will. This is important to ensure court approval if a Grant of Probate is needed to allow the executor to administer the Will. This will include an attestation clause to confirm you signed the Will in the presence of a minimum of two witnesses, and that the witnesses signed the document in front of you and each other.
This important process also helps prevent challenges to the Will by disgruntled relatives who may try to claim that your Will was not properly signed and witnessed; that you were not of sound mind when making it; that you did not know what was in the Will, or were pressured or coerced into signing it; or that there has been forgery or fraud involved in the making of the Will.
A Will is an essential legal document that all adults should turn their attention to so that their wishes regarding the distribution of their assets are accurately carried out after death.
At Big Law, our legal team has the expertise and experience to guide you through each step of the will-making process, ensuring that the final document is clear and accurately reflects your wishes. Contact us by phone at (07) 3482 6999 or email [email protected] to schedule an appointment about making your Will today.