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Preparing a will – get it right and protect your future

Preparing a will is the best way to ensure your assets are distributed as you wish when you’re no longer there to manage them. To be effective, your will must be clear, legally valid and up-to-date.

So why do so many Australians put off preparing a Will or try to do it themselves?

The law around Wills can be complex. People also have very different situations and intentions. By preparing your own Will, you risk mistakes, executing it incorrectly or not expressing your intentions clearly enough. This AFR article outlines some of the most common issues with DIY wills.

A homemade Will is also more likely to be contested, which means that the whole process could end up in Court.

If you die without a valid Will, the situation is no better. Your estate will most likely be divided in accordance with a legislative formula. This takes no account of your wishes and may cause hardship, cost and delay for your family.

So what is a Will?

A Will is a written document that sets out who will receive your assets when you die.  You may wish to gift certain items to a dear friend or family member, or leave a bequest to your favourite charity.

A Will can also be used to appoint a legal guardian for your children if they are minors and to establish a trust for them until they come of age.

You can also use your Will to make provisions for beloved pets.

What makes a Will valid?

In order for a Will to be valid, it must be

  • signed by you
  • witnessed by two people, who are not beneficiaries under your Will. If you leave someone a bequest, they cannot witness your will.

When you make a Will you will also need to appoint an executor and trustee, who will look after your affairs when you die.

  • The executor’s role is to obtain Probate, pay any debts, and distribute your assets in accordance with your Will.
  • The trustee administers any trusts set up in the Will, usually in relation to any minor or disabled beneficiaries.

Your executor and trustee can be the same person, or you can nominate different people for these roles.  You can also nominate more than one person to each role, but this will sometimes make the administration of your estate more complicated.

We recommend you appoint someone that you know well and trust. Discuss the appointment with them to ensure that they are comfortable to take on the responsibility that you are giving them.

Can you change your Will?

You may change your Will at any time, provided you have mental capacity.

We recommend you always review your Will if there are any significant changes to your personal circumstances. For example, you may marry or divorce, or your executor or one of your beneficiaries die.

Marriage will generally revoke a Will.  Divorce will cancel any gift you make to your former spouse under your Will. With such major life changes, not only is your will probably invalid or unclear, your wishes for your estate may have changed as well.

You cannot update your Will simply by crossing things out or by adding in additional clauses.

The only way to update or make changes to your Will is by a Codicil. This is a written document added to a Will, which must meet all the formal requirements of a Will.  Often it is easier to make an entirely new Will.

How can we assist you with your estate planning and preparing a will?

For all these reasons, it is very important that you have a Will. Your Will should be drafted by someone who understands the law and can provide the best possible advice, to ensure your assets end up where you want them to go and that your family is looked after.

At Karen L Haga and Associates, we can assist you with all your estate planning needs, including:

  • Ensuring that your Will is valid and is drafted and executed correctly.
  • Advising you on how to provide for your spouse or de facto partner, children or other dependents.
  • Advising you about your rights and obligations to former partners or estranged family members.
  • Ensuring that the Will expresses your wishes in a clear and concise manner, so nothing is left to chance.
  • Give you a thorough understanding of the role of your executor and trustee.
  • Provide a complimentary service to hold your original Will in our secure deed safe.

For more information or assistance with preparing a Will, please contact us and make a time to see one of our solicitors.

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