Article by Chris Ryan of Chris Ryan Legal
Level 1 14 Church Street, Newcastle, NSW 2300
DISCLAIMER: This article is no substitute for legal advice and should not be read as such. A will should only be prepared by a qualified solicitor after taking instructions regarding your own personal situation.
What is a Will?
A will is a legal document that sets out what happens to your real and personal property when you die.
To be valid it must satisfy certain requirements according to legislation and it should be tailored to your own personal circumstances.
Recently I bought 5 business shirts from a department store. The shirts were made by 3 different manufacturers. The sizes and fit were different for each manufacturer. I used to think that size 44 was size 44 and that was that! One brand I had bought previously and those shirts fit fine, the other's didn't.
In my laziness I didn't try the other shirts on, nor did I ask the salesperson for help, I thought I knew best. Had I asked for help and tried the shirts before I bought them, I would have saved time in the long run and received a proper fit, first time.
There are no guarantees that the sizing or style of shirts won’t have changed the next time I buy a bunch of shirts. The risk of cutting corners with the shirts was not that great since the downside was either a second trip to the store for an exchange or putting up with a shirt that didn’t quite fit right. The risk of not getting your Will right is much more significant and it is your family which pays the price.
What happens when there is no Will?
If you die without a Will you die wholly intestate. If you have an otherwise valid Will and a gift in your Will fails, you may die partially intestate.
An intestate estate is distributed according to a regime set out in legislation. Under this formula, the entitlement to estate property works its way down from a surviving spouse through a chain of blood relations and if there are no relatives, the State of New South Wales gets it.
I recently had an inquiry from a relative by marriage of a 96 year old lady who passed away after all her beneficiaries and other blood relatives had died- she therefore died intestate and the State reaped the win fall as there were no other qualified beneficiaries.
No one need die wholly or partially intestate. A properly drafted Will which is revised at proper intervals can ensure that people or organisations of your choosing can benefit from your wealth.
Research has indicated that about 40% of Australian adults do not have a Will.
Why have a Will?
• To take control over how your Estate is distributed after you die.
• To avoid unintended beneficiaries receiving a share of your Estate (such as a former spouse, estranged child, or in some cases even the Government).
• To properly provide for your dependents (particularly if you have dependants from different relationships).
• To control the proportion of the distribution of your Estate (for example if you have given significant financial assistance to one of your children in your lifetime and believe that this advance gift should be taken into account with respect to the gifts to your children in your Will).
• You can nominate a guardian for your children.
• You can create a trust for your heirs so that your Estate can provide an income over time.
• Exploit certain tax advantages.
• You can make a gift to your Church or favourite charity.
What about a Will Kit?
Let me address the issue of Will Kits. A properly completed D.I.Y Will contained in the approved kits is perfectly valid but is it going to do what you want it to do? Sometimes what we think we want is not always practical, possible or desirable. What a Will kit won’t do:
• Advise you of all your options;
• Answer your questions in a way that makes sense and is relevant to you;
• Explain the operation of your Will so that you understand it properly;
• Help you choose an executor;
• Explain issues concerning superannuation and asset protection;
• Raise other relevant and significant issues which may not directly affect the operation of your Will, but may still have a significant impact on your family’s financial welfare after you die.
In extreme situations not having a proper Will can result in hardship to family members, significant reduction or wasting of assets and significant litigation against your estate.
The majority of Wills I prepare for my clients are what lawyers call “simple” Wills. These Wills are “simple” because the net Estate (after payment of debts) is left to one or more persons equally (sometimes a simple trust might be created for infant beneficiaries). This format, as it turns out, is satisfactory in most circumstances. All of my clients though who end up signing a simple Will after going through the process of considering their personal circumstances where I discuss with them the various issues which may arise and what their objectives are for their Will. Often this process involves conferring with other professional advisers (for example a financial planner and/or accountant). Sometimes a simple Will format is inappropriate. At the end of the process my goal is to have my clients understand the way their Will works and that this understanding gives them comfort and empowerment that their family, friends, church or charity will be properly provided for in accordance with their wishes after they die.
Getting back to the shirts for a moment, think of getting a qualified solicitor to prepare your Will as not just asking for help but going one better and getting the tailor involved- you get something which fits your needs.
There is no reason why all adults should not have a valid Will. If you don’t have a Will, there is no reason to wait- the best time is now. If you have a trusted family solicitor I encourage you to speak to them about either preparing or updating you Will if you haven’t done so in the last 4-5 years. Getting a Will prepared is as easy as talking with a solicitor.
If you would like to discuss with me any issue surrounding the making of a Will or like to have your existing Will reviewed, please do not hesitate to call me for a confidential obligation free chat on 0406913100.
