Last Will and Testament
Your last will and testament (will) is a legal document providing instructions about who you wish to inherit your assets, who is to be the guardian of your children and who is to be appointed the executor of your estate in the evening of your passing. A valid will ensures any assets and property are distributed according to your wishes and reduces the risk and exposure to unexpected contests.
Why do I need a last will and testament?
Although thinking about your last will and testament may only arise when someone close passes away, everyone over the age of 18 should have a will.
Each life stage has complexities that remain outside our awareness until the unexpected happens. Simply hoping or guessing your family and friends know your intentions for your legacy can introduce unpleasant surprises. Even if they do, the court may be appointed to make the decisions on how your estate is to be distributed.
The importance of a will increases as our life circumstances change. Notable life stages that prompt the need can include:
Passing away without a will
Although common to put-off writing your will, considering what happens in the event of passing away is important. Should you pass away without a will you are considered ‘intestate‘. This means your assets are distributed amongst your surviving relatives in accordance with the succession act 2006. The distribution depends on many factors including your marital status, whether you were a parent and your other living relatives.
Ultimately the Court and state laws decide who will receive priority over your assets along with guardianship of children and pets.
Having a will allows you to protect your estate against this situation. You will be able to guarantee your most valued possessions are handed down according to your wishes and instructions.
What makes a will legally binding?
Anyone can write their own last will and testament. As tempting as it may be, the chance to miss key information and ultimately having it considered invalid is present. Getting professional advice ensures your assets are distributed as you intend. Here are some guidelines:
A will can be written by individuals aged 18 years or over. Special circumstances may permit a will for persons under 18 years to write a will, legal advise is recommended.
Be written by someone of sound mind, referred to as ‘compos mentis.’ This means they are able to have full, unimpaired thought and cognitive understanding.
Executor and beneficiaries
Clearly state the executor and beneficiaries. The executor of the will or personal representative will be tasked with managing your estate. They will handle any debts, distribute assets and ensure your instructions are followed for things like funeral arrangements. The beneficiaries will be recipients of any assets. Contrary to popular belief, an executor may also be a beneficiary.
The testator (person writing the will) must sign the will in the physical presence of two witnesses. Each witness’ full name and address and must be present below the signature. Although some circumstances permit a witness to be a beneficiary caution is advised. The will must be witnesses in presence of testator.
Jointly owned assets
In instances where ownership of assets is joint or equal, the asset/s automatically pass to the other ‘owner’ regardless of will instructions. This is applied to assets like the family home and joint bank accounts.
Superannuation, trusts and life insurance
Assets held in super funds, trusts and life insurance policies are excluded from wills and allow for beneficiaries to be nominated.
Depending on the structure, beneficiaries are often nominated in a ‘default’ manner. Understanding how this is done allows changes to to be made that better suit your requirements.
Several types of nomination are possible, each with implications that should be checked against your needs.
Do it yourself or do it for me?
We often get asked whether it is better to write your own will or if getting professional help is a better investment.
With all questions regarding legal matters, it depends on the individual and the situation. We encourage our clients to do their homework, get understanding of what a will can do, what it can’t, and when getting expert advice will make a difference.
We all lead complex lives with unique family structures and varying financial situations. All these elements favour being prepared when it comes to your last will and testament. Your solicitor can carefully consider your personal situation how a will can form a key part of your estate plan.
Enquire with Joseph today:
(OAM) - LAWYER - SENIOR CONSULTANT
Joe is the original founder of the firm. He commenced his legal career assisting new immigrants providing them with legal advice in various areas of Law.
His knowledge and experience is of benefit to his clients, as he can generally see and determine which path the matter follow. Joe is always ready to provide his knowledge and support to his sons and all staff members in matters relating to: