Your will is also the means by which you choose the executor(s) of your estate; the person who will be responsible for ensuring that your wishes are carried out.
If you do not have a will then the law determines who receives your assets after you die. It is also a more difficult, lengthy and costly process to deal with an estate when there is no will.
A well-prepared will ensures that beneficiaries know that their inheritance is in accordance with your wishes.
Who can make a will?
Anyone over the age of 18 can make a will if they have the mental capacity to understand the nature and effect of a will. In some circumstances the Court can make orders regarding wills for people under the age of 18 or who do not have capacity to make a will themselves.
Who should you have as Executor?
Your executor should be reliable, have common sense and be able to seek out information and advice from the right sources. You should have no doubt that your executor will act honestly.
If your financial affairs are complicated, you should appoint an executor who has the skills to deal with your financial circumstances and who will seek the advice of professionals such as lawyers and accountants to administer your estate.
If you are dividing your estate between multiple family groups, you should consider whether it would help (or hurt) to nominate an executor from each group.
When should you update my will?
Once you have made a will it is important to review it regularly and keep it up to date. A will should be updated if any of the following events occur.
- Your intentions change;
- An executor dies or becomes unwilling or unable to act as executor;
- A beneficiary dies or is at risk of becoming insolvent/bankrupt;
- Property that you have specifically gifted in the will is sold or given away;
- You have married, separated or divorced;
- You have entered or ended a de facto relationship;
- You have had children (including adopted or foster children);
- You have changed your asset-holding structure.
Can a will be challenged?
Wills can be challenged or invalidated in some circumstances.
Spouses, children or people that can show that they had some financial dependence on you may be able to bring a claim if they have not been appropriately provided for in your will. The law limits who can apply and sets time limits on when this can happen. It is essential that when making a will you consider who may be aggrieved with your proposed distribution.
A will can also be invalidated if the court is not convinced that you understood the document you signed. The involvement of experienced wills and estate practitioners can make this outcome much less likely.
What should you do once you have made a will?
You should let your executor know that you have made a will and where the original will is going to be kept. The will should be kept in a safe place where it cannot be lost or damaged.
Points for Making a Good Will
So how do you make a good will? Here are some points for you to keep in mind:
- Go to the experts. You should see a lawyer to get it right – and perhaps your accountant and a financial planner if you have complicated family or financial considerations. This is especially the case if you have significant assets or income and tax effectiveness is important.
- Your will should be clear and use plain English. You should understand what it says.
- Be careful who you appoint as an executor. If they are elderly or in poor health they may die before you or be unable to cope with the responsibility. If your nominated executor is not trustworthy, your estate could become mired in dispute.
- Nominate guardians for any young children. This is especially important for single parents.
- If you wish to leave someone out of your will you should get expert advice.
Homemade or “will kit” wills can be invalid or sub-optimal because of lack of knowledge or skill in preparing and witnessing the will. If the service you use (or the kit you buy) says that it’s not legal advice then be aware it is not certified to fit your circumstances. Rectifying invalid or partially invalid wills can cause difficulties, lengthy delays and additional costs when the estate is administered. They can also result in the estate not being divided as intended.
A legal professional with relevant training and experience will give you the best possible advice when preparing a will. The legal issues that arise with modern estate planning, including multiple marriages, step-children, de facto relationships and superannuation are complex and need careful consideration.
