Making a Will
A well-written Will makes your intentions clear, shows that you care, makes it simpler for the ones left behind and may save your estate significant amounts of money as well as reducing stress.
Wills are often overlooked. Sometimes it is forgotten and mostly it is put off until you have the time to think about it, work out who gets what and how to achieve it. The reality is with the assistance of an experienced Lawyer making a Will, is for most people, simple, stress free and a relatively inexpensive process. A Will is a legal document providing for the administration of your estate and how it is to be distributed. A valid Will ensures those you want to receive property on your death do so. A poorly written Will can lead to delays and disputes. You can write your own Will but having one prepared by an experienced Lawyer is insurance that your wishes will be carried into effect.
What if you do not have a Will?
If you do not have a Will on your death your property will be distributed as provided by the Administration Act. A person dying without a Will is said to have died intestate. Intestacy also occurs where someone leaves a Will that is invalid or does not deal with all their property.
Who should you appoint as your Executor(s)?
By making a Will you choose who you want to manage your estate as provided by your Will. You should nominate someone you are confident will carry out the directions in your Will so your wishes are given effect. The role of the Executor is an important role. An Executor does not have to have qualifications and you should choose as an Executor someone who is;
- Over eighteen; and
- Who will carry out their duties properly?
It is important you discuss with the person you wish to be your Executor whether they will accept the appointment. It is important they agree to accept the position as an Executor can always renounce and they do not have to apply for administration or carry out the administration of your estate.
It is preferable for you to nominate an alternate Executor so if the person first nominated dies, is incapable or is unable to apply then there is someone else who can fill the position.
What property can you leave by Will?
Anything you own can be left by your Will. Some countries have rules about to whom you can leave particular or all property in that country. If you have property in an overseas country then you must get legal advice on the question.
It is better not to leave your property item by item because if you sell something then that gift fails. If you want to leave particular assets to a particular person it is important to have a clause dealing with anything which is not specifically left. This is a clause dealing with the balance of your estate (the residue).
If you do not make provision for everything you own then the rules of intestacy will regulate how that is distributed.
There are investments or interests commonly thought to be a person’s property which cannot be left by a Will, examples are;
- Property belonging to a Family Trust; or
- Other property held on Trust i.e. property in which you have a life estate.
If you have property in a Trust then it is essential you take advice on how you can pass control of that Trust to those you wish to receive the property in the Trust.
Other Matters which may be included in your Will
Disposal of your body or the use of body organs for medical or therapeutic purposes.
Payment of your Executor:
There may be directions about parts of your estate i.e.
- The occupation of the family home;
- The release of a debt owed to you;
- A gift to charity;
Arrangements for children:
If you are survived by the other parent of the child then normally they will be the Guardian of the child however if there is no other parent then you should include provisions for the guardianship of your child and it is important to remember the Family Court always has jurisdiction on these matters.
Payment of gifts to Beneficiaries
In Western Australia the age of majority is eighteen and you may not want a child or Beneficiary to take at this age. You can provide in your Will for the property to be held on Trust until the Beneficiary is twenty-one, twenty-five or some other age.
With the larger estates that can be tax advantages for the Beneficiaries in creating a Testamentary Trust by your Will however, this is something that you should discuss with a Lawyer experienced in this area.
Changes to your Will
If the change is simple it can be done by a short Codicil. If it involves significant changes or changes that may upset or embarrass, then a new Will should be prepared.
Storage of your Will
Your Will should be kept in a safe place where it will not be marked or damaged. It is important that you leave details of where your Will is kept so it may be readily found. It is also a good idea to make sure your Executor and/or Beneficiaries know where the original Will is kept.
It is important to keep the Will safe as it cannot be found the law presumes that you have revoked it.
Marriage and your Will
If you get married after you have made the Will then that revokes the Will unless the Will says that it is made in contemplation of that marriage that is the Will says it is made by you in anticipation of your marriage to X. If the Will is prepared like this then it is not revoked by the marriage.
If you have married since your Will has been made you should speak with a Lawyer to see if you have a Will.
Since the 9th February 2008 your Will is revoked if your marriage is dissolved or annulled. As with marriage if the Will is made in anticipation of your divorce or there is evidence showing this was your intention then the Will, will not be revoked.
In any event with a divorce before the 9th February 2008 you still should see someone to see if your Will is appropriate as your divorce did not revoke it.
If you have substantial property and are involved in a business partnership, family company or family trust then you should have professional legal advice on the most appropriate form for your Will.
Other circumstances which make Wills more complex i.e. if you have children from more than one relationship, Beneficiaries are overseas, you have property in overseas countries, have a child or spouse with a disability in all these circumstances it is wise to have your Will professionally drawn.
There are many considerations to making a Will and obtaining the right legal advice from someone who is experienced in this area can help to ensure your wishes are achieved and enable you to have the peace of mind that you have protected the interest of those you wish to benefit.
Please contact our office to discuss your estate planning requirements.