The thought of making an important legal document such as a Will can be one of those ‘life tasks’ people like to put off, but there are many very compelling reasons for resisting that impulse.
In this article, we’ll provide some more detail on the most important reasons for making a Will. Perhaps the most important, when all is said and done, is that a Will is an expression of your final wishes. For your loved ones, it is usually relied on as a clear ‘guide’ for them to follow to ensure that your estate is distributed as you wished it to be.
Your Will generally provides guidance on what you wish to happen with: land, houses or commercial property that you own; money held in bank accounts and term deposits; shares; other investments; personal belongings; life insurance policies, and; employment entitlements (but not always superannuation).
If you fail to make a Will before your death, the state may become responsible for distributing your estate under the intestacy laws and any wishes you had for how this should be done during your lifetime are likely not to be honoured.
If you have questions about making a Will, contact us at Felicio Law Firm today. We have experienced Wills and Estates lawyers who take a caring and compassionate approach to the queries and concerns of our clients.
The best reasons for making a Will
Perhaps the primary reason for making a Will during your lifetime is to ensure you do not die intestate (without a Will).
To do so means your worldly possessions will be distributed by an administrator under the state’s intestacy laws, and not take into account what you wished to happen with your estate.
When you make a Will, you appoint a trusted person as the executor of the document, entrusting them to distribute your assets to beneficiaries, resolve your debts and order your affairs according to the instructions you left in the Will.
One thing an administrator is likely to do is to distribute your assets equally between your children. But for a variety of reasons, many people do not wish this to be the case. One of their children may have personally cared for them in their later years and the Will-maker believes they deserve more from the estate. One child may have been professionally successful and less needy of an inheritance. One may be going through or has gone through, a divorce, where the ex-partner may have a claim on the inheritance as part of a property settlement.
Perhaps you would like to specifically look after your grandchildren in your Will. This may not occur if you die intestate because your estate will generally be distributed between a surviving spouse and your children, rather than the next generation.
Similarly, stepchildren are not generally recognised as beneficiaries under intestacy laws. They can become so under a valid Will.
Many people would like to leave something in their estate to a charity, or a lifelong friend. Again, without a Will, this is unlikely to happen under the laws of intestacy.
A further reason to make a Will even before you reach mature years is that the document allows you to name a guardian for minor children. No one knows what the future holds. In the event of your sudden death, or that of both you and your partner, it may be left to a court to decide which people are best placed to take responsibility for your infant children, and these may not be the people you preferred.
The importance of a Will in blended families
In modern society more and more people need their Will to address the fact they have had more than one family during their lifetime.
You may divorce and remarry. You may divorce and your ex-partner remarries or forms a new de facto relationship. There may be children from the original relationship but not the subsequent one, yet the surviving spouse may be able to bypass their children when they receive and pass on your assets to the new spouse (and their beneficiaries).
There are a number of ways a Will can deal with these situations but you should first consult an expert legal professional. There may be a ‘mutual Wills’ agreement whereby both spouses agree not to change their Will when one of them dies, allowing the children from the relationship to enforce the agreement in court should a surviving spouse decide to change his or her Will.
Another solution is to grant a right of residence to each other to live in their share of the family home for life, with each other’s share returning to the other once one of them dies.
Making a valid Will
In the digital age, there are many free and DIY will kits offered online. It’s very easy, however, for a legal document such as a Will to be adjudged invalid if it is not done correctly. An invalid Will means your wishes can, again, be overridden by intestacy laws.
In general, a Will must be in writing, whether handwritten, typed or printed, signed by the testator (the Will-maker) and witnessed by two other people who also sign the Will.
Ideally, a Will should be reviewed and, if necessary, updated every three to five years. This way it can best reflect any changes in your life circumstances, most particularly changing family arrangements. Once you start earning income, it’s never too early to consider making a Will.
If you have questions or concerns about making a Will, contact Central Coast & Erina Lawyers specialists Felicio Law firm today.
