“It is essential that your will is updated on a regular basis.”
Statistics show that a large percentage of Australians still leave matters to chance and fail to make a will. Unfortunately by doing so their estate will be distributed using a formula decided by law, not be them. This can result in added expense, delays and inconvenience to family and friends during a time of grief. Important matters, such as the guardianship of minor children is left for state laws to determine. In some cases all assets will pass to the state.
Throughout our lifetime we have worked hard to provide as best we can for our loved ones. It seems a shame therefore to neglect the ultimate means of sharing our concern: a legal up-to-date will.
Who Should Make A Will?
Every person over the age of eighteen should have a legal up-to-date will.
It is essential that your will is updated on a regular basis. This is particularly important when a family situation changes such as a marriage, divorce or the birth of a child.
A will that does not reflect current family status may be invalid.
A carefully drafted will allows you to:
• Divide your estate the way you choose.
• Make necessary arrangements for your family and loved ones.
• Choose an executor to carry out the instructions in your will and settle your estate.
• Name a guardian for children who are minors.
• Provide for the charities you have supported throughout your life.
The first step is to make a list of the family members, friends and organisations you want to benefit from the distribution of your estate.
Gather all relevant information on your assets, e.g. real estate, bank accounts, shares, life insurance, superannuation, cars, jewellery etc.
Decide who will receive your assets
Decide on your executor(s) and make sure that they are agreeable to performing that role.
If you have children under the age of 18 years, decide who you wish to nominate as their guardian.
Seek qualified assistance from a solicitor or trustee company in drafting your will. This will ensure your wishes are expressed in the correct legal format. Bear in mind that the solicitor or trustee company who assists you in drafting your will is likely to be the one your family approaches for guidance.
Witnessing a will
A will is invalid unless it is signed in the presence of two witnesses. A beneficiary or executor must not witness a will.
The effect of marriage and divorce
Marriage revokes a will unless the will is made in contemplation of marriage.
In some cases divorce revokes the appointment of the former spouse as executor and
• Upon marriage.
• Upon separation.
• Upon divorce.
• Upon entering into a defector relationship.
• When amendments are made to the law (e.g. tax, superannuation).
• After the purchase or sale of substantial assets.
• Upon the birth of a child.
• Upon the death of a beneficiary or executor.
• Once children or grandchildren turn 18.
• Every three years or so to make sure it reflects your current wishes.
A minor change or addition to your will can be done simply by adding a codicil. This saves re-doing the whole will. Its an extra document that becomes part of your will and is best drawn up by a solicitor and needs to be witnessed. A codicil is a straight forward way of adding a gift to a charity in your will.
What is Power of Attorney?
Giving someone ‘Power of Attorney’ means that you are giving them the power to look after your legal and financial affairs.
An enduring Power of Attorney allows someone you trust and nominate to act on your behalf in case you are no longer able to do so. For instance, your attorney will be able to operate your bank account if you are overseas. Should you ever become mentally incapacitated, this person would act on your behalf.