What is a Will?
- A Will is a written document which:
- takes effect upon death
- appoints an executor (the decision maker and person charged with carrying out your wishes)
- appoints guardians for infant children
- details your wishes for the distribution of your estate to your beneficiaries
- deals with the assets in your estate as at the date of death
- Each person needs their own Will
- In Australia – each State and Territory has jurisdiction over Wills and estates. There is no uniform approach
- In Queensland, Wills are generally revoked upon marriage, unless the marriage was contemplated in the Will
- There’s more than one type of Will! It’s not a “one size fits all” kind of document
What does intestacy mean?
- Intestacy means dying without a Will OR you have a Will which is not valid
- It is estimated that almost half of all Australians die without a Will!
- Distribution of an intestate estate is governed by the relevant law of the State/Territory. For most people, the intestacy laws do not result in a distribution which you would have intended or wanted for your loved ones
DO I REALLY NEED A WILL?
“I don’t own much, so I don’t need a Will…”
- This is the number 1 excuse we hear for why people don’t have a Will
- A Will isn’t necessarily about what you own and who should get what. It’s also about ensuring your loved ones/next of kin have the legal ability to deal with your estate
- All estates require administration, no matter the size
- Superannuation entitlements (particularly a death benefit attached to your superannuation) can amount to thousands of dollars payable to your estate
- Circumstances of death may mean substantial insurance payouts will form part of your estate
Common problems with Wills
- The Will is simply “out of date” – it may have been years or even decades since it was last reviewed
- Births, deaths, marriage, divorce, new relationship, new business – these life events may all have an impact on your Will and how your deceased estate should be distributed
- Poor drafting – key information is missing, a beneficiary may have been inadvertently excluded, or there is a failure to deal with the “whole of the estate”, resulting in a partial intestacy
- The Will is invalid – In Queensland, we have strict requirements for the making of a Will, how it is witnessed and by whom. Failure to comply may result a Will being found to be invalid = intestacy OR earlier Will prevails
DIY Will Kits
- Cheap, but often nasty!
- Testators (will makers) often fail to complete the document properly or have the document witnessed incorrectly (or not at all)
- There is no opportunity for a testator’s instructions to be interpreted and, if necessary, re-drafted appropriately
- Generally, there is no third-party record of your intentions – no one can speak for you to clarify your wishes
- Where not completed properly, a Will kit causes substantially more cost to administer your estate
ENDURING POWERS OF ATTORNEY (EPOA)
- These documents are just as important as a Will, if not more so as they affect you whilst you are alive
- life is uncertain and we don’t know what the future holds
- An EPOA:
- is a document (separate to your Will) in which you appoint an “attorney” to legally act on your behalf for your financial, personal and health matters
- allows your attorney/s to act on your behalf should you suffer a loss of capacity or as you otherwise instruct
- can be structured to suit an individual’s needs and can include certain powers or instructions depending on your wishes
- only operates during your lifetime – it ends immediately upon death as this is when your Will takes effect
- It is essential that you chose attorneys who you trust, who know you well, and who are financially astute!
- We consider EPOAs as part of the estate planning process, to ensure that all aspects of your personal and business life are taken care of in the event of losing capacity or death