Who needs to write a will?
Regardless of your financial position – anyone over the age of 18 should have a written will in place…
You can’t take it with you when you die. But you can decide who gets to keep it! Contrary to popular belief the government doesn’t take a deceased person’s property in the absence of a will, but they do employ a formula to distribute your assets. The procedure is complicated, time-consuming and could cause disputes among family members.
Who should write a will?
It’s important to note that a will is not a legal document reserved for the rich. You should consider writing a will if:
You’re over 18
You have children
You have property and/or possessions (which can include: home, land, bank accounts, cars, insurance, shares, jewelry, furniture, and so on…)
What’s the point?
A will is a written document that allows you name the people you want to receive your property and possessions at the time of your death.
Allows you to chose an executor who will be responsible for managing your estate
Reduces opportunity for family feuds over your estate
Decide who will be appointed guardian of your children until they can look after themselves
Appoint a trustee for the money and assets you leave to children who are minors
Exclude someone who would otherwise receive part of your estate
Leave charitable gifts
Avoid unnecessary taxes
Take care of children from previous relationships
Provide for de facto or same sex partners
Identify power of attorney and guardianship to provide legal, medical and housing decisions in the event you are no longer able to look after yourself
Make it count
A valid will must be accepted by a court and put into effect by a grant of probate. To be valid it must be:
In writing (handwritten, typed or printed)
Signed (ideally at the end of the will)
Witnessed (two witnesses must be presented when you sign or acknowledge it and they too must sign in your presence. They do not have to be present together at the time they sign)
There are several ways to draft a will document – you can do it yourself, use a kit available online, or have a solicitor draft the will. It is highly recommended that you have a solicitor create your will, however, as many homemade wills do not stand up in court or create unwanted tax liabilities. Lawyers may charge around $100 for a simple will, or more for complicated estates. The other advantage to using a lawyer is that solicitors will hold wills on behalf of their clients – usually at no charge. You should also keep a copy and ensure that your executor knows where the will is kept.
The people you name in your will to inherit your assets are beneficiaries. Anyone can be named – including your pet poodle, but you should provide for your spouse, partner, children and other dependents, otherwise they could challenge the will.
If your beneficiaries are under 18, then you will need to establish a trust as they are unable to own property outright. Your will can specify the age that your child can inherit the estate. As well you should appoint someone, called a testamentary guardian, to look after the children.
In addition to naming the beneficiaries, you should name someone to be the executor to handle your affairs after you die. It’s a big responsibility and can be shared by more than one person. Anyone can act as your executor – your spouse, relative, friend or Solicitor – but the person should be consulted prior to their appointment.
The executor will be responsible for obtaining a probate of the will and paying any taxes, debts or expenses before distributing the balance to the beneficiaries in your will. An executor who is not a beneficiary can apply to the court for payment.
Changes to your will can be made at any time, but it takes a little more than white-out to do it. Major changes will require you to make a new will, while minor ones can be made by adding a codicil or separate document outlining the change. The codicil will need to be signed before two witnesses.
It’s important to make a new will if you get married, divorced, or if you have a baby or adopt a child. You should also make a new will if a beneficiary, executor, or guardian dies. Should your finances change dramatically or it’s been more than five years since you last reviewed your will then you should also consider writing a new will.
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