A Will is a legal document that states your wishes as to how your assets are to be distributed after your death, and what people you nominate to manage the distribution of those assets on behalf of your Estate. So, what makes a Will valid, and what must a Will include?
To be valid:
Your Will is a very important document, and you need to make sure that it is prepared accurately, and that it will be legally valid. In order to be legally valid, a Will essentially needs the following:
- It must be prepared in writing, whether typed or handwritten;
- You must have appropriate mental capacity to be able to give instructions for the preparation of your Will, and to sign it. This means that you must have a reasonable understanding of what your assets are, and what would be the effect of the provisions in your Will. Your lawyer who prepares your Will and signs as your witness are usually able to appropriately assess this. When your capacity may not be so clear, particularly if you have any health conditions, or are elderly, your lawyer may help to protect the validity of your Will by also ensuring that you have a medical assessment by a doctor who can also test and confirm this mental capacity for you.
- Your Will must be signed by you, and the signing of your Will must be done in the presence of two independent adult witnesses who must also sign.
What do I need to include?
A Will can, and should, include the following:
- Who you would like to appoint as your Executor and/or Trustee. Their role is to sign off on your funeral arrangements, to carry out your wishes and to manage and administer your Estate. They don’t need to have a particular skill set to carry out this role, just be someone that you trust. Often you would appoint your main beneficiaries or close family members. After you die, when your Estate is being administered, we will be there to assist your Executors, and we will handle as much of the paperwork for them as we can.
- Who you want to give your assets to. These people are your beneficiaries. When we prepare your Will, we purposely ensure that it has levels. For example, your first level may be to leave all assets to your spouse or partner. Your Will may then state that if your spouse or partner has passed away before you, that you will give all assets to your children equally. Then for a further level, it may state that if any of your children are not still alive when you pass away, and they have children that are still alive (being your grandchildren), then they will receive what would have been their parent’s inheritance.
For most Will-makers, they will not specify their assets individually, but rather have an ‘all in’ approach which determines that whenever they die, whatever assets they own in their name will be given to certain beneficiaries, in certain proportions. For most people, this is considered the fairest option, as they are attempting to ensure that no matter what the value is of their Estate, they are catering for certain beneficiaries on an equal basis. Otherwise, you can nominate specific assets to go to a certain beneficiary.
Determining who your beneficiaries will be, and in what proportions, can be particularly difficult if you have a ‘blended’ family. In a blended family, you may have married/partnered later in life, and both you and your spouse have children from separate relationships, and possibly children together. We assist couples with these decisions regularly. Sometimes people feel overwhelmed trying to work out the fairest way to work through this, but rest assured this is part of what we can do to help you, to understand your family relationships, and the loyalties that you are trying to weigh up, and we can suggest a series of options for you to consider.
- You may have real estate, or an asset that you want to let one family member or loved one use for their lifetime, but later pass the asset on to another family member or loved one. This is referred to as ‘life interest’ or ‘right to occupy’ and can be a very effective method of looking after everyone. For example, you may want your new partner to be able to live in your property for a certain period of time after your death, or maybe for their whole life, but then you want to lock in that after their death, the proceeds will be divided amongst your children. (If this interests you, stay tuned for an upcoming blog post: Life Interest v Right to Occupy)
- Some Will-makers do not want to treat their children equally in a Will. This may be due to what help one child has provided for them, above others, or it may be a result of a family relationship breakdown. In this case, you need an experienced lawyer to help guide you through the options, taking on board your family complexities. It is also important that your lawyers have an extensive understanding of the grounds that a family member may be able to contest your Estate, and therefore, get on the forefront by documenting your wishes in detail, including both in your Will, and an additional statement from you, to best protect your deceased Estate in the future.
- If your beneficiaries are children or young adults, we normally suggest putting protective measures in place so that their money is looked after by your Executor, until those beneficiaries reach a certain age, such as twenty-five (25) or twenty-one (21) years.
- If you have children under the age of eighteen (18) years, it is advisable to consider who you would like to nominate to be the guardian of your children, until they become adults.
- You may have particular real estate or other assets that you want to leave to a certain family member but want to make sure that you remain fair overall. If so, we can incorporate appropriate clauses to allow these options to occur, and for the value of the asset to be considered.
- If your Estate is of high value, or if you have concerns that any of your beneficiaries may be going through a risky period, such as a family separation, bankruptcy, being sued, or ill health, you may want the taxation benefits or protection mechanisms of a Testamentary Trust Will. (If this interests you, stay tuned for an upcoming blog post: Why choose a Testamentary Trust Will?)
- You can include directions in relation to the disposal of your body, such as burial or cremation, if you wish.
Estate Planning outside of your Will
Some of the crucial Estate Planning advice that we can give you is not contained in your Will. When we meet with you, and understand your full family arrangements and details of your assets, we can advise other ways to ensure that your Estate passes on as you wish. This can include:
- Do you own real estate as a Joint Proprietor? If so, that real estate will not become part of your Estate, instead it will automatically become owned by the other surviving proprietor. Therefore, what your Will says regarding this asset is irrelevant. If you are no longer happy for the other joint proprietor to receive your share, and instead would like to bequest it to someone else, it is important that we update the status of your ownership of the real estate as soon as possible.
- Do you know that superannuation does not necessarily form part of your Estate? It is important that you have a binding nomination in place. We can help you to strategise how best to do this. Do you want superannuation to pass directly to certain family members? Or if you have a Testamentary Trust Will you may prefer for superannuation to transfer to your Estate, so that it is protected by the Testamentary Trust provisions. But don’t let superannuation transfer to your Estate if there’s risk of a contest! Let us help you to brainstorm the best scenario for you.
- Do you have Companies and/or Trusts? Who will control them after you pass away? Is that best dealt with by your Will, or are there other appointments or variations that you could make now to ensure the outcomes that you want? Let us review your corporate and trusts set up, and give you clear options. This review should often incorporate input from your accountant, so that any taxation ramifications are considered.
To protect your loved ones in the event of your death, it is important that all adults have a valid Will. We take pride in providing high quality Wills for our clients, by ensuring that we meet with you, whether in person or by telephone or video call, to get a clear understanding of your family situation, and to discuss what options would be best for you. We try to ensure that the process is as straight forward for you as possible, but you can be confident in knowing that we will also help you to navigate the tricky parts, if they relate to you.
This is not one of those ‘to do’ jobs that you should put off any longer.
Contact our office on (03) 5623 5166, or head to our website today to book an appointment either in person, by video call, or phone call, to discuss your needs with one of our experienced Estate Planning lawyers.
Kylie Boote – Lawyer
Disclaimer: The information in this post is general in nature. This does not constitute legal advice and should not be relied on as such. Please contact one of our Lawyers if you are seeking advice about a specific legal matter.