“Where there is a Will there is a way, so make sure your will is done before you go away…for good.”
The importance of a Will cannot be understated.
It is undervalued and is seen more as an inconvenience than a sensible way to look after your family after you die.
Yes, there is only 2 certainties in life, death and the other one that we don’t like either, and it starts with T and ends in AX.
Yet despite this inevitable certainty, I have lost count of the number of times I have been told by clients:
“I’m too busy”
“Let’s wait until I come back from my overseas holiday with the family”
“Let’s do it next week when I get back from my work trip”
“I’ll just go on this bike ride and we’ll arrange to do it then.”
The question is, what will happen to your family or loved ones if you all die unexpectedly on that overseas trip, and you never return from that work trip, or that bike ride?
There is no good time to make a Will.
Having a Will is not for the wealthy or old, I had my first Will at the age of 24 when I started accumulating assets.
The other question is, would you trust the Government to look after your estate and family in the event of your unexpected death?
Here are some reasons why you must have a Will:
- Beneficiaries: to get to choose who benefits from your estate upon your death. If you die intestate (or without a Will) the State determines who benefits from your estate and it may not be the persons you would have chosen to provide a benefit to.
- Care of children: To appoint trusted guardians for your minor children in the event of your death you must have a Will.
- Executors: A Will gives you the power to appoint people you trust that will ensure that your cash and property is administered, including arranging your funeral.
- Avoid a challenge: You can disinherit people who would otherwise stand to benefit from your estate. If you die without a Will, it exposes your assets to challenges by persons you may never have contemplated, such as an ex-spouse. It will assist in avoiding an unnecessary legal claim if you have a valid Will.
- Death is a certainty: As indicated above, tomorrow is not promised to anyone, so you must have a Will which addresses your current circumstances. If you have a Will, it probably needs a review. Does it deal with your present circumstances?
- Reduce costs: By having a Will the administration of your estate will be less costly as your intentions are accounted for in the document and less open to challenge.
- Reduce stress: The administration of your estate should not cause undue stress to the loved ones you leave behind.
- Maintain the family business: Having a Will ensures there are people in the right positions to continue the business during the administration of your estate.
- Minimise Estate taxes: A Will that includes a testamentary trust may help minimise taxes.
- Gifts and Donations: Many people like to leave a legacy or charitable gift in their Will.
- Buried or cremated: You can provide instructions for burial or cremation and or funeral services in a Will. If you don’t leave instructions, your family members will be making these decisions without your input.
- Do you run a company or are you a sole Director? Some Things to think about. Difficulties can arise if you die without a Will. The estate cannot be quickly administered and dependents such as widows and children can be left waiting long periods before the State steps in to manage the estate. When a sole trader or Director of a company dies, the death will usually leave the company without a person properly authorised to immediately manage the company. Section 201F of the Corporations Act 2001 permits the personal representative of a director to be the executor if the director has died, or Power of Attorney if they have lost the capacity to appoint a director. Therefore, having a Will is critical and confirms the personal representative of an estate and avoids timely delays that can arise. You need to consider who receives the shares, who is the executor, and who is the power of attorney for the shareholder.
When should you update your Will?
- Major lifestyle or relationship changes such as marriage and divorce. A recent marriage will affect any previous wills made;
- When you have children. You should nominate a guardian to your children in the event of your death.
- You have acquired property. If this is the case, you should consider whether your property should be held jointly as tenants or in common. For assets held jointly, they will automatically go to the joint owner and will not form part of your estate. This could affect the entitlements of any children that are not the biological children of the surviving tenant, for example, a blended family.
Disclaimer
The content of the McDonald Law website is provided for information purposes only. The contents of this website do not constitute legal advice, it should only be used for information and entertainment purposes only. If you have a particular matter that you need legal advice for or have any questions about our disclaimer please contact our office at (02) 8824 4736 or 0411 460 034