As you go through life hopefully building up assets and wealth, you need to make a Will to make sure that what when you die, what remains of the wealth you have accumulated will pass to the people or organisations that you would like to benefit from it.
A Will is a legal document that appoints someone to be your personal legal representative (called an “Executor”) upon your death and nominates the people or organisations that you would like to receive the money, property and possessions you still own when you die.
This Basic Guide gives some general information regarding some common questions people often have about making a Will. However, you should always speak to a lawyer to discuss how a Will can best serve your interests and those of your intended beneficiaries.
What if you die without making a Will?
If you die without having made a valid Will, you are said to have died “intestate”. In NSW, there are rules contained in legislation (in Chapter 4 of the Succession Act 2006) that regulate the inheritance of some who died intestate. Not having a Will therefore means you don’t have any say in what happens to your estate when you die, as it is all dealt with according to the statutory rules of intestacy.
In the case of intestacy, someone with a sufficient interest in your deceased estate has to apply to the Supreme Court for “Letters of Administration” to authorise them to administer your deceased estate in accordance with the rules of intestacy. Your estate will then be distributed according to those rules.
In the worst-case scenario, if you die without leaving a valid Will and you have no close family, your estate may pass to the State Government as what is called “bona vacantia”, meaning “unclaimed goods” or “property that has no owner”.
Quite possibly, the application of the rules of intestacy will not produce a result that you would have wanted if you had expressed your own wishes in a Will. This is especially so if you have had more than one spousal relationship, or if you have a blended family, or if you have a family with small children or if you would like to leave one or bequests to charitable organisations.
The legal process in the case of intestacy is also more complex and time consuming than in cases where there is a Will. The situation on intestacy could thus lead to greater expense, worry and hardship for your family and friends. This can be avoided if you speak to one of our lawyers to make a valid Will.
When is it the right time to make or review a Will?
You really should make a Will if you are over the age of 18, especially if:
- you have acquired money or property or other assets, or if you have disposed of or made changes in your ownership of such property or assets;
- you get married or you are living in a de-facto relationship;
- you have one or more children;
- you have children who might be under the age of 18 when you die, who may then need a guardian appointed to care for them and someone to hold their inheritance for them until they are old enough;
- you get divorced or you remarry after having previously made a Will (because under section 12 of the Succession Act 2006, a Will made before marriage is revoked by that marriage);
- there are other changes in your family circumstances;
- the executor you have appointed in your Will dies or can no longer act in that role because of age or ill health of some change in your relationship with them;
- you have chosen to appoint more than one executor, but it becomes clear that they will not be able to co-operate for some reason;
- a beneficiary you had nominated dies; or
- you have children who have turned 18 and you would like to appoint one or more of them to be your executor/s.
Can I just do a Will myself?
Writing your own Will or using a do-it-yourself Will kit is certainly one option you have. However, doing your own Will without the benefit of legal advice or guidance can lead to unwanted problems for your executors or your beneficiaries, including the risk that the Will or a part of it will be invalid.
Invalidity can arise in various ways, including a failure to observe the formalities that the law requires for the signing of a Will. Such failures or invalidity may create unwanted problems later on in relation to the administration of your estate.
There are also some technical rules about the wording of Wills. A Will that you draft yourself could potentially be interpreted in a way that you did not intend if you are not familiar with these rules.
Many court cases have been fought over the years due to disputes about the meaning or validity of the Will of the deceased. Often this has been because the relevant Will has been drafted without professional advice. In such cases, whatever amount of money was saved by a person preparing their own Will was dwarfed by the costs to their estate of the court case fought over it.
It is obviously a false economy to save money on preparation of the Will, only to have the deceased estate bear a far greater cost down the track.
What sort of assets should be dealt with in your Will?
Here are the kinds of assets that you would usually deal with in your Will:
- Your home and/or investment properties (NB: if you jointly own a house or land with another person, whether or not it can be bequeathed in your Will depends on whether the property is owned as “joint tenants” or as “tenants in common”).
- Shares held in private or publicly listed companies.
- Private company loan accounts.
- Money in bank accounts and term deposits.
- Other investments such as in bonds and in trusts.
- Cash and payouts from employers.
- Jewellery, furniture, appliances, antiques, cars, clothing and paintings.
What items might not be covered by your Will?
Some assets that you consider to be your own usually cannot be effectively left to someone in your Will. The most obvious examples are:
- Insurance policies;
- Property owned as joint tenants (see above); and,
- the family business.
In relation to family businesses, these are usually conducted through companies, family trusts or partnerships. Although the business itself cannot be bequeathed by leaving it in a Will, you can bequeath your interest in the company, trust or partnership that conducts the business.
You should of course obtain legal advice about the best way to ensure that you can have a Will that can properly implement your wishes and intentions regarding what happens to assets like these after you die.
How can Craddock Murray Neumann Lawyers help you?
Craddock Murray Neumann Lawyers can provide you with guidance and advice about making a Will and can help simplify the process for you. By fully understanding your needs, we can make things as clear as possible in your Will.
At Craddock Murray Neumann Lawyers we don’t provide financial or tax advice, but we are happy to work with your professional financial or tax advisers in relation to your estate planning needs.
Here are some of the advantages of using Craddock Murray Neumann Lawyers:
- We will take a detailed look at what you own and who you might leave it to and then make sure you understand your choices for your Will and the potential implications of making those choices;
- We will give you efficient, reliable and prompt service with plain English explanations and advice;
- We can give you advice about making a Will and ensure it addresses any special circumstances (e.g. providing for a disabled or vulnerable beneficiary, using testamentary trusts, the conduct of your business after you die, or better managing tax and asset protection issues that could affect your beneficiaries);
- We can prepare a well-drafted and comprehensive Will tailored to your circumstances;
- Your Will can be held by the firm in our safe custody; and
- We can help you to review your Will and your estate planning needs over time to ensure they remain tailored and appropriate for your life circumstances.
What sort of things should you consider before coming to see us at Craddock Murray Neumann Lawyers?
Before you make an appointment with one of our lawyers, you need to think about things such as:
- Who do you want to have as your executor(s)?
- Who should be appointed to be the alternative executor(s) if your first choice of executor is unable or unwilling act or to continue acting as your executor?
- Who do you want to nominate as your beneficiaries and what do you want to leave to them?
- What are the respective needs of the beneficiaries you want to nominate and how can you best provide for those needs in your Will?
- Who should act as guardian of your children if they are under 18 when you die?
- What are your main assets and liabilities and where are they located?
- Are there any assets located in overseas countries?
- Are there any current or former family members who might be upset by what you want to do in your Will or who might possibly want to challenge it?
Other services available at Craddock Murray Neumann Lawyers
When you make your Will, you should also consider appointing both someone to act as your attorney under an Enduring Power of Attorney and also someone to act as your enduring guardian under an Appointment of Enduring Guardian.
This is very important to ensure you have a trusted person making decisions for you if you ever lose capacity to make your own decisions.
Please refer to our Basic Guides on Powers of Attorney and Enduring Guardianships for more information or discuss these documents with one of our lawyers.