How a Will protects you
A Will is a legal document that states how you would like your property to be divided after your death, and the person or organisation you would like to be responsible for executing your wishes.
The Executor(s) of your Will must:
Collect all your assets
Pay all your debts
Distribute your assets in accordance with your Will.
If you don't have a valid Will, your assets will be distributed according to the laws of the State or Territory in which you lived at the time of your death. This may not be the way you wished to have your assets divided.
Having a valid Will is the safest and securest way to ensure that when you pass away, your family members or loved ones are properly provided for and the likelihood of a Will dispute is reduced.
Legal requirements of a Will
A Will must fulfil three criteria to be valid:
- It must be in writing (either handwritten, typed or printed)
- It must be written by a person who is over 18 and mentally competent
- It must be signed in the presence of two witnesses who must also sign the Will.
For people lacking capacity, an application for a court authorised Will can be made.
To ensure your property and possessions get distributed to the people that you care most about once you die, it is vital to prepare a valid Will.
Make your Will online
Our Online Wills Service offers a simple, convenient and quick way to prepare a valid Will from the comfort of your own home. It includes a free self-assessment tool that will enable you to assess whether a Standard Online Will is suitable for your needs, or if your circumstances mean you should seek the guidance of an Estate Planning lawyer.
If a Standard Online Will proves suitable for your needs, you can elect to proceed and complete an Online Will for only $199.
If the self-assessment tool determines that your circumstances are too complex to be adequately dealt with online, you can elect to schedule a free, no-obligation consultation with one of our Estate Planning lawyers.
In either case, we'll have you covered, and your Estate Planning self-assessment report will be emailed to you for free.
Assets not covered by a Will
Only assets owned exclusively by you are controlled by your Will. For instance, jointly owned assets such as bank accounts or home contents will pass automatically to the other joint owner(s) upon your death, independent of your Will. The only exception to this rule is assets that are owned jointly as 'tenants in common'.
Other assets not controlled by a Will include:
- Assets held by a superannuation fund. These generally go to a dependant spouse or children, and are not controlled by your Will.
- Assets owned by discretionary trusts. These do not become part of your estate as they remain the property of the trust.
- The proceeds of a life insurance policy, which are paid directly to the beneficiary nominated by the insured person, and thus do not form part of a deceased's estate.
- Assets owned by unit trusts or companies that are controlled by you. The shares or units of such trusts and companies, however, will form a part of your estate.
Many of the assets that constitute an estate can be contested in a Will dispute so it's important to understand what's excluded before creating one. Always make sure you get the right legal advice when making a Will in case there is any dispute or confusion between your beneficiaries.
Powers of Attorney explained
A Power of Attorney is a legal document that gives a trusted person the authority to make business, legal, and financial decisions on your behalf. By appointing someone as your Power of Attorney, you authorise them to manage affairs for you while you are alive. A Power of Attorney should not be confused with an executor, who is the person(s) you nominate in your Will to handle cases after you die.
When appointing someone as your Power of Attorney, you can specify:
- When the appointment is to operate
- Whether they have limited or unlimited powers
- In the instance that you nominate several Powers of Attorney, whether they must act jointly or whether they can independently exercise their powers.
Generally speaking, your Power of Attorney ceases to be effective at the moment of your death. They can only manage your affairs while you are alive. After your death, the executor(s) of your Will must take over.
Enduring Power of Attorney
An Enduring Power of Attorney outlines who you would like to manage your affairs if, or when, you no longer have the mental capacity to do so. Mental capacity is defined as the ability to make or communicate specific decisions at the time they need to be made.
We recommend you consider appointing an Enduring Power of Attorney to conduct your financial and legal affairs in the event that you:
- Suffer from unsoundness of mind, a mental illness or other misadventure, which may lead to you losing your mental capacity
- Are not up to physically managing your own affairs.
It's important to note that losing capacity does not just happen to people who are ageing. A loss of capacity can happen at any time and can be temporary or permanent. If you're making a Will and contemplating who to choose as your Power of Attorney, considering an Enduring Power of Attorney is the next step to planning ahead.
How we can help you with Wills
Preparing a Will is rarely a painless process and requires intense attention to detail. We are experts in handling Will and estate cases, and can help ensure your property and possessions are distributed according to your exact wishes.
Our Online Wills service can help you get started, while our Estate Planning lawyers are always happy to help and conveniently located throughout Australia. It's a good idea to talk to a lawyer to make sure your will is valid and that you have expressed your wishes in the best possible way, so that nothing is left to chance. Even if you think you have little to leave anybody, a Will offers the freedom of ensuring your assets go where you want them to.
Reach out to us today
If you would like more information making a Will, want to contest a Will or simply want to chat about what happens if you die without a Will, contact us today and we'll get back to you shortly.