After reading last months article regarding estate planning (click here), you will now realise how important it is to have a Will and hopefully you’ve decided to get your Will done (well done!).
Unfortunately, not all estate planning or Wills are created equally.
Our Gold Coast team often see people trying to cut costs by doing it themselves using a do-it-yourself-will-kit.
Saving a couple of dollars now by using a cheap knock-off document could end up costing your estate (and your family) many thousands of dollars in legal fees when the time comes to use it. We would strongly recommend that you have an experienced lawyer from Affinity Lawyers undertake your estate planning and draft your will for you to ensure that the document accurately conveys your wishes. More importantly, this will ensure that it is drafted correctly and that your wishes are able to be carried out efficiently and effectively.
It is vitally important that you remember that making a Will without the assistance of a professional is not advised.
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.
Firstly, you must be aware of what assets and property form part of your ‘estate’, and which are capable of being distributed in accordance with your will. Ergo, you must know the law in relation to bequests before you can make bequests.
For example, superannuation may or may not form part of your estate (and this is a complex area which requires consideration of your individual circumstances). Therefore if you believe that you are leaving your superannuation to someone in your will, you may be shocked to learn that in actual fact an entirely different person would be entitled to your superannuation benefits after you have passed. This is obviously an entirely unintended consequence, and a great risk if you fail to seek specific legal advice when undertaking your estate planning.
Likewise, family trusts do not form part of your estate, so your beloved business, which you were hoping to leave to your children upon passing, would be locked up in a family trust and would not fall within the scope of your will. The trust would be dealt with in accordance with the trust document, and the only way to address this issue would be to update and amend the trust deed, if necessary, to accord with your wishes.
Real Property Holdings
Another issue which is quite common, but which people are unaware of is if you are holding real property with another person as ‘joint tenants’, then if you die, the other joint tenant automatically becomes the owner of your share. What this means is that you cannot give away your share in your will. You may therefore think that you are leaving your share of the real property to your children in your will, however because of the joint holding, immediately upon your death your interest in the property automatically vests in the other joint owner. This of course means that your children will not be entitled to any of that share of the property. This is another common, but unintended consequence of not having sought legal advice in relation to your assets and will.
Then there are, of course, a myriad of issues which cannot be addressed by a will kit. These include a failure of the document to specifically (or correctly) identify beneficiaries and assets. What happens if you specify that your house at ‘123 Smith Street’ is to go to your spouse, but when you pass away the Smith street property is long gone and you instead own several different properties (which are not identified in your will)? What happens when you leave your estate to your spouse but unfortunately your spouse passes away before you and you have failed to update your will or include a proper fall-back clause for this circumstance?
A final comment, and possibly one of the biggest concerns with will kits is the witnessing requirements for a will to be deemed valid. Unfortunately, more often than not, people have someone at home witness the will, and often times this witness is also a beneficiary under the will, or the partner of the will-maker – both of which will invalidate a will. Not only that, but there are also specific and stringent requirements when it comes to handling a will, including alterations, staples, corrections, folding and the like.
One mistake can cause your entire will to be deemed invalid, and unfortunately these mistakes are usually not identified until after you have passed away, when it is impossible to rectify them.
As you can see, having your will drafted properly is a necessity if you wish for your estate to be dealt with as per your wishes and to ensure these wishes are carried out with minimum expenditure on legal or court fees.
If your family is forced to make an application to the court to clarify the contents of your will, or argue about what you ‘meant’ in your will, this could cost many thousands of dollars for something that could have been avoided by the will being properly drafted in the first instance.
In light of the above, we strongly recommend that you obtain professional legal advice tailored to your specific circumstances and have your will undertaken by one of our legal professionals at Affinity Lawyers (meet the team). Furthermore, if you do have a will kit will, we encourage you to book an appointment with one of our experienced and friendly wills and estate solicitors to have an estate planning consultation to review your will. We can also provide you with advice about whether you need to have a correctly drafted document in order for your wishes to be met.
Affinity Lawyers on the Gold Coast provide a personalised and friendly service, providing you and your loved ones with considerable peace of mind now and in the future. Please do not hesitate to contact our office on 5563 8970 if you have any enquiries.