What is a Will?
A Will is a legal document that clearly sets out your wishes for the distribution of your assets after your death. Having a clear, legally valid and up-to-date Will is the best way to help ensure that your assets are protected and distributed according to your wishes upon your death.
A Will is one of the most important legal documents you will ever sign, so you should seek legal advice by an experienced Wills and Estates lawyer to ensure your Will is valid, executed properly and enforceable.
What are some of the requirements for a valid Will?
To make a valid Will you must be over 18 years of age and understand what you are doing (i.e. have testamentary capacity). The Will must be in writing, it must be signed and your signature must be witnessed by two other people who also need to sign the Will.
Why do I need a Will?
A Will puts you in charge of important decisions now about what you want to happen to your affairs after you die. It is a legal document which will ensure your intentions are carried out.
You should take action now so that you can be assured that your assets will be given:
- to the people you want;
- to support your beneficiary’s needs;
- in the way you want;
- as quickly and simply as possible; and
- as tax efficient as possible.
Having a Will makes the winding up of your estate less confusing, quicker and cheaper.
What happens if I die without a Will?
If you die without a valid Will, this is legally described as “dying intestate” (or intestacy) and in such circumstances, your next of kin will need to make an application to the Supreme Court for “Letters of Administration” where your property and possessions will be distributed using a pre-determined formula set out in the Succession Act 2006 (NSW).
Usually, this means that all your assets will pass to your spouse and/or children. However, if you have a legal (married) spouse and a de facto spouse (i.e. you have separated and you have a new unmarried partner), if you have children from different relationships or if you die with no spouse or children, then the situation becomes much more complex.
For more information, read our article: ‘Intestate – what happens if I die without a Will?”
What happens if I marry or divorce?
If you marry, generally this will revoke or cancel any earlier Will you have prepared. There are exceptions which our lawyers can explain to you.
If you divorce, this also revokes any earlier Will you have made.
Who can I leave my assets to?
Whilst you can leave your assets to whomever you like, you do have a general obligation to provide adequate provision for the proper maintenance, welfare and education of certain people, including your spouse or de facto partner, your children and any other person who had lived with you in a close personal relationship. Failure to do so can result in them bringing a claim against your estate. Rockliffs lawyers can discuss with you ways of addressing your concerns to ensure that your wishes are upheld.
Our lawyers can discuss with you ways of addressing your concerns to ensure that your wishes are upheld.
If I don’t say where my property goes then who does?
Without a Will, you have effectively left it up to the government to make your decisions for you. This does not mean your assets will automatically pass to the State or Crown, as it is often assumed. However, as you have died without a will, known as ‘intestate’, the Succession Act 2006 (NSW) sets out the order in which your eligible relatives will inherit your estate. It is only if you die without eligible relatives that your estate will pass to the State or Crown.
The obvious disadvantage of this is that you will have no control over the distribution of the estate, which will be distributed among your nearest blood relatives, where they have been close to you or not. The estate is then divided into fixed proportions depending upon the blood or domestic relationship between you and your family members.
Therefore, it is always better to make a Will – that way you make your own decisions about who will inherit your estate, rather than having the intestacy rules apply. You can choose to benefit your favourite charity, a friend or a remote relative who may not be included under the intestacy rules.
You will also save your family and loved ones a great deal of administrative work, anxiety and pain if you have left a clear will, rather than making them go through the process of establishing themselves as eligible relatives.
Should I draw up my own Will?
Homemade Wills are fraught with problems. The complexity of laws relating to property, taxation, deceased estates, stamp duty, partnership, companies, superannuation, contracts, insurance, trusts and the like make it essential that a Will be drawn up by a solicitor, otherwise you could put your family’s financial security at risk.
For more information or examples of cases involving the concerns with Will kits or homemade Wills, read the following articles:
- Homemade Wills are a curse
- Pitfalls of Homemade Wills
- Another example of problems caused by Will-kits
- Beware of “Free Will” from the Public Trustee
Who would be the best person to be my executor?
Naturally, you should choose someone you trust completely to carry out such an important responsibility and who knows you well enough to be aware of your intentions or wishes. You should also consider their age, health, location (they should not live too far away to effectively carry out their duties) and whether they would be willing to take on the responsibility.
Your lawyer should be able to discuss the options and can guide you on the things you need to consider when deciding who should be your executor.
How many executors should I appoint?
We recommend that at least 2 executors be appointed. However, as each situation and family structure are different, it is best to speak with your lawyer to discuss what is best suited for your scenario.
Do my executors get paid?
An executor may apply to the Court for commission for the time and trouble that must be devoted to the administration of the estate.
What if I want to leave a child or dependant out of my Will?
If you decide that you do not wish to leave any part of your estate to one of your children or dependents, you are entitled to stipulate this in your Will. However, your children or your spouse may dispute the terms of the Will on the basis that you have not made adequate provision for them.
Chapter 3 of the Succession Act 2006 deals with Family Provision claims, which ensures that adequate provision is made for the maintenance, education and advancement in life to certain defined ‘eligible persons’.
An eligible person could be a wife or husband or former wife/husband, a person with whom the deceased was in a de facto relationship at the time of their death, a child of the deceased, a person who was dependant on the deceased, a grandchild who was dependant on the deceased, or a person in a close personal relationship with the deceased at time of their death.
How long do I have to make a family provision claim if I have been left out of a Will?
An application under the Succession Act 2006 must be made within 12 months from the date of death. However, under section 58 (2) of the Act, the Court may extend the time if a person can show ‘sufficient cause’.
If you have been left out of a Will, it is very important you seek legal advice regarding your rights, and to act fast if 12 months have passed since the persons death.
What if I have lent people money before I die?
Any money owed to you at your death is your asset and forms part of your estate. For example, if loans have been made to your children, then you can consider whether these loans are to be forgiven in your Will.
Can I sign the Will at home?
On occasion, we are requested to send a Will out to clients to be signed. We prefer not to do this as there are strict rules with respect to the signing of a Will which if not followed strictly could invalidate the Will. If it is done in our office we can ensure everything is done properly.
Can I change the Will at any time?
Once made, a Will can be revoked or changed at any time. It has no effect until you die. If there are changes to be made we recommend you seek advice from an experienced Wills and Estates Lawyer because if the amendment is incorrectly carried out, the delays and legal costs involved in later correcting this mistake can be expensive.
Where is the best place to keep my Will?
We recommend you leave your Will with us, free of charge in our safe or with your Bank to hold it for you or alternatively in your safe or safety deposit box. You should notify your executors as to where the Will is being held or stored. If your Will is lost or accidentally destroyed and cannot be found on your death, then you may be presumed to have destroyed it with the intention of revoking it. In this situation, the laws relevant to intestacy then apply.
What if I already have a Will?
Your Will is not something that you do once and forget about. You should review your Will every 2 to 3 years, or when your financial situation changes, including after the sale or purchase of property or when you inherit assets under a Will.
It is important that you do not overlook changes that occur in your life such as marriage, divorce, de facto relationships, having children, buying and selling assets, starting or selling a business, changes to taxation laws and other changes in circumstances which can have a serious effect on your Will. When any of these events occur, reassess the contents of your Will so that it remains an accurate record of your wishes.
Wills and Estates is a complex area of law that creates a lot of issues for families upon a person’s death. A lot of these issues can be avoided by consulting with a reliable and experienced Wills and Estates lawyer that is familiar with the laws in NSW.
If you would like to speak with one of our Sydney lawyers regarding your Will or estate planning issues, contact us today.