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MAKING A LAST WILL AND TESTAMENT - WHAT DO YOU NEED TO KNOW?
Mon, 11 Jan 2016
Making a Will without the assistance of a professional is not advised. The main goal in creating a Will is to ensure that your wishes are fulfilled after death. Even the most simple or self-explanatory do-it-yourself kit can leave errors or gaps, which will mean that the executor of your Will won’t be able to administer the Will without extensive court intervention. If the court cannot determine your wishes, they may need to disregard the entire Will or fill in the gaps, which may mean your wishes aren’t fully administered. The following is information you will need to know when seeing a professional about the creation of your Will.
What do I need to bring to my appointment?
Your solicitor is likely to ask you to bring a list of assets you own and a list of immediate or dependant family members.
It would also be sensible to have a list of the people who you would like to nominate as beneficiaries (recipients) of each asset you own.
You should include in your list of assets, any assets which you own under an alias as it is important that you dispose of these assets in an appropriate fashion, regardless of whether your family or friends know of your alias or other acquired properties.
Some important or interesting facts about making a Will
- It is important to remember as your circumstances change that you will need to adjust your Will.
- You will need to have two witnesses to your Will, who are both over 18 years old and will not be beneficiaries under your Will.
- To make a Will, you must be 18 years or older, though in some circumstances you can obtain court approval to execute a Will for someone under 18.
- Consider where you would like your Will stored- it is not normally advisable to keep these at home as your Will won’t be considered to exist if it cannot be found at the time of your death. It is advisable to keep these in safe storage with a bank or your solicitor.
- If you get married, your Will is considered revoked unless the Will provided for the future marriage. Similarly, if you get divorced, your spouse referred to in your Will becomes ineligible to receive any benefits you provided for in the Will, and will no longer be able to be the Executor (administrator) of your Will.
- You may only appoint four (4) Executors to your Will.
- When making your will:
- Be specific and remember specific gifts or promises as the Court will not allow the bestowment of a gift they can’t identify.
- Remember to provide for things like costs to the Beneficiary in delivery of a gift if it is particularly onerous;
- Remember the financial impact of the person who you bestow the gifts to (i.e. will their government pension be affected or will they incur a large tax bill as a result of the gift?)
- You can nominate a guardian for your children if they are under 18 years of age, however, stating who you would like them to live with will only provide evidence in court proceedings, and will not be binding. The Family Court will need to decide on the living arrangements of the children through a special order.
- If you do not want a particular child/ family member/ spouse/ dependant to receive a benefit you must state specific reasons to explain this decision in the Will, as Division 5 of the Succession Act provides that family can apply to be maintained through the estate if they are not provided for in the Will. Your reasons will be provided as evidence in any such proceedings.
- A residuary clause should cover all property you have forgotten to include in the Will. You can nominate the recipients of any residual property in this clause.
- Provide instructions as to your wishes for burial, cremation or your funeral. Your Executor must ensure these wishes are complied with.
- Anyone whom you make a beneficiary must survive 30 days after your death to receive any benefits.
- You must provide the full name(s) of the beneficiary/s and it is helpful to provide their address, particularly if they are a friend or acquaintance.
Affinity Lawyers offers in-depth estate planning consultations to enable you to discuss your requirements with a professional and experienced lawyer. Don’t put off this important task any longer – it is the beginning of a new year and the perfect time to have your affairs put in order. Telephone our office on 07 5563 8970 today to arrange your consultation.« Back to Articles
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