Wills are a topic that none of us like to consider, but having a legal, properly prepared will is vitally important to ensure your wishes are carried out on your death. Without a will, your estate could be distributed unfairly according to a formula set by each State and Territory’s intestacy laws. This could result in some of your relatives receiving more than you wished, while other loved ones are not provided for in the way you intended.
A properly drafted will ensures that the person you nominate administers your estate according to your wishes, and makes the granting of probate quicker and less expensive, leaving more for your loved ones. It also reduces the possibility of others making a claim.
These days you can even buy a ‘will kit’ from your local post office. These sorts of wills can often cost your family much more than it saved you in the first place [Dangers of DIY Will Kits]. It may also fail in fulfilling your final wishes. In comparison to the value of your family home, superannuation and other assets, a professionally prepared will is a small price to pay for peace of mind.
There are many things to consider when preparing your will, including:
An executor is someone you appoint to administer your estate after your death. The person/s you select should:-
- be someone you trust;
- have time to undertake the task;
- be your own age or younger; and
- have some business acumen or financial experience.
These are the people who will look after any children who are under 18 years of age.
You will need to decide whom you wish to benefit under your will and obtain their full names and addresses. In the event that you wish to specifically exclude certain relatives you must bear in mind they may challenge your Will. You will need to provide us with reasons why you have excluded certain relatives. This will not stop people challenging the will but it will certainly set out your reasons for not including them in your testamentary wishes.
Gifts to beneficiaries can take several forms such as:-
- specific gift of assets, for example, particular items of jewellery, property, shares etc;
- specific gifts of cash;
- general gifts for example, ‘all my household chattels’; and
- gift of the residue.
You need to be very careful with giving people specific gifts because the nature of these gifts can change, for example, monies in bank accounts can be closed; properties can be sold. If you leave a specific gift to a beneficiary in your will and the nature of this gift changes before you die, it is quite possible that the beneficiary will never see the benefit of the gift. Sometimes it is easier to just leave a certain percentage of your entire estate or a specific monetary amount.
Your Business or Profession
If you carry on business through a partnership or company we must consider how this affects your testamentary intentions. We may need to include extended powers of executors in your will (for example, to continue to carry on your business or profession after death).
The assets in a family trust will not actually form part of your estate as the trust will continue after you die. If you have effective control over a family trust, we will need to explain to you how best to effect your intentions in relation to those trust assets and plan for the transfer of their control after your death. We will need copies of the Trust Deed and Constitutions for the Companies and also recent financial statements so that we can ensure that we deal with these entities in accordance with your wishes.
Superannuation and Life Assurance Policies (Death Benefits)
Most people hold life assurance policies (death cover) and there is normally a death component attached to your superannuation policy as well as the amount of the contributions. When you took these policies out you may have nominated a specific beneficiary to receive the payout in the event that you died. We need to know if you have done this and who the beneficiary is so that we can advise you about what to do with these policies. You should contact your insurance company or the institution that holds your super policy to see whether you have nominated any beneficiaries. Some people have had these policies for a long time and may have even nominated their mother or ex-wife as beneficiaries! If you are not sure, just bring details of the policies and who they are with and we will chase this up for you.
Self-managed Super Funds
If you have a self-managed super fund we will need to see a copy of the super fund deed and get particulars of who the trustee is and the fund members. A super fund is a separate legal entity and is usually not affected by your death (i.e. it can continue provided members of the super fund are still alive). This can cause problems if you have children from previous marriages and want some or all of the assets that you hold in the super fund to go to them after you have both passed away.
For more information on Self Managed Superannuation Funds (SMSF) please click the following links:
- Self Managed Superannuation Funds (SMSF) & Death Benefit Nominations
- Why an Enduring Power of Attorney is important for Self-managed Superannuation Fund members?
Testamentary trust wills
A testamentary trust is a trust established in your will and takes effect on your death. There are many different types of trusts and they are often useful where:-
- you wish to protect assets for your children whilst still providing for your surviving spouse;
- a beneficiary has bankruptcy or potential liability issues (such as business owners or at-risk professionals – doctors, engineers, builders etc);
- a beneficiary is ‘at risk’ from undue influence or relationship breakdown;
- a beneficiary has special needs such as addiction problems, an intellectual disability or is unable to manage money; or
- there are a significant amount of assets in the estate.
A simple will may well be very unsuitable for Tax reasons and reasons of Asset Protection, especially for large Estates or Estates with at risk beneficiaries. When we meet with you we will discuss whether your circumstances warrant the use of a testamentary trust.
Attwood Marshall Lawyers
Northern NSW & Gold Coast, Queensland
Gold Coast Estate Planning, Estate Plan, Will Planning