Having a legal Will is the best way to ensure that once we pass away, our family members are properly provided for and the likelihood of estate disputes occurring is reduced.
Making a Will
To make a valid legal Will:
- You must be over 18 years old,
- Ensure your specific wishes are written and
- Ensure it is signed in the presence of two witnesses
To ensure that your estate is given to the people that you care about when you die, it is important to prepare a legal Will.
What is a Will?
A Will is a legal document that sets out how your property is to be divided after your death. Under the Will, an executor is appointed who will look after your estate. The executor must:
- Collect all your assets
- Pay all your debts
- Distribute your estate in accordance with your Will
If you do not make a legal Will, your estate will be distributed using a fixed formula determined by the government.
You should therefore make a Will even if you think you have little to leave.
Slater and Gordon offers a simple Online Wills service.
What is a Power of Attorney?
A power of attorney is a document by which you appoint and authorise one or more people to manage your financial and legal affairs.
You can specify:
- When the appointment is to operate
- Limited or unrestricted powers
- Whether attorneys must act jointly or whether they can independently exercise the powers
Enduring Power of Attorney
A power of attorney designed to continue to operate after you lose your mental capacity is called an enduring power of attorney.
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 leads you to losing your mental capacity, or
- You are not up to physically managing your own affairs
Assets not controlled by a Will
Only assets owned by you will pass into your estate and be controlled by your Will.
Jointly owned assets
Ownership of jointly owned property will pass automatically to the other joint owner(s) person upon your death, independent of your Will, if owned as joint tenants. This commonly applies to homes, home contents, bank accounts and personal effects, and other jointly owned assets.
Assets in your sole name, including real estate, cash, vehicles, shares and units in trusts, will form part of your estate and be controlled by your Will.
Unit trusts and companies
Assets owned by unit trusts or companies controlled by you will not become part of your estate. The shares or units however, will be an asset which forms part of your estate.
Assets owned by discretionary trusts controlled by you will not become part of your estate. They are owned by the trust.
The insured person nominates the beneficiary of their policy, often their spouse or family member. The proceeds of a life policy are paid direct to the beneficiary and do not form part of the deceased estate.
Assets held by a superannuation fund most often pass to a dependant spouse or children, not your estate.