COVERING ALL THE BASES – THE IMPORTANCE OF A WILL

The Opener

It’s not always easy to think of how you want to distribute your property and look after your loved ones once you pass when you are still around enjoying it. Preparing a Will can be a stark reminder of one’s own mortality and can easily be written off as a task for another day when it feels more crucial or relevant to start planning what happens after you’ve passed.

However, that uncertainty of the after of your life is exactly what makes having a Will now so important.

The Rundown

A Will is a legal document that outlines how you want your property to be distributed and who will take care of your affairs and loved ones when you are either unable to do so or no longer around.

This area of law is governed by the Wills Act 2007 which sets out how wills should be prepared, executed and administered. A Will is defined as being a document that is made by a natural person which disposes of property and/or appoints a testamentary guardian.

It is estimated that around only 50% of adults have a Will. There’s a common misconception that Wills are only needed if you have a lot of assets or if you can foresee people contesting your wishes. Regardless of what you own though, having a Will is beneficial not only for you but also for your loved ones.

In your Will you are able to include:

• Your funeral arrangements;
• Any property you own;
• Any investments you have;
• Distribution of items of significant value or sentimental value;
• People you wish to provide for or leave certain items to;
• Guardians to be appointed to any dependent children;
• Charities or organizations you wish to leave money to;
• Any other particulars you deem relevant.

The Backstop – Intestacy

If someone does not have a Will when they pass away, this is described as dying intestate (or intestacy). How your assets and/or property will be distributed is generally decided on the estate’s value.

When someone has died with an estate value of less than $15,000.00 this is described as a small estate and means that the deceased’s next of kin can take on the task of managing the estate without having to apply for legal authority.

When someone dies more than $15,000 worth of assets, the formal legal process must take place in order to distribute those assets. This involves applying to the Court for permission to be appointed as the executor.

While some may be comfortable with the ambiguity of how their assets will be distributed between the people we leave behind, the best way to counteract uncertainties and futureproof your intentions is to have a Will.

It is also key to note that simply having a Will does not mean there might not be any issues. For this reason, it is crucial that your Will is prepared properly.

The Team – Choosing your Executors and Beneficiaries

For your wishes to be carried out, you will need to appoint someone to do this. If you don’t, this responsibility, as described earlier, may go to someone else you had not intended on.

This role is not a light one and includes responsibilities such as:

• Organizing your funeral;
• Making applications in the Courts (if necessary);
• Paying your expenses and debts;
• Distributing and managing your assets;
• Handling final tax and bank matters;
• Dealing with claims against the estate.

You will want to choose someone that you confidently believe has the ability and capacity to do all those tasks (and more). This involves choosing someone you trust as this person is essentially acting as an instrument for your wishes.

It is common for someone to appoint their partner, children, siblings, or close friends as their executor/s. However, trusted professionals (such as Wakefields Lawyers) can also be appointed in this role.

You are also able (and recommended) to choose back up executors, as dying without an executor will cost your loved one’s time, money and stress which can be avoided with proper planning.

Additionally, you will need to choose your beneficiaries. These are either individual or organisation that will be left anything under your Will. Who these people are and what they receive (along with any restrictions or conditions associated with them) is up to you. When they are to receive their distribution can also be up to you, as if common with children where a vesting age is set out in the Will (for example, allowing for a child to receive their distribution once they turn 25).

To accommodate young, dependent children it is also common to appoint a testamentary guardian. A testamentary guardian is someone who will help make decisions for your children up until they are 18, so it is crucial to pick someone you and your loved one’s trust to take on these responsibilities.

Changing Bases – Updating A Will

The Game of Life is constantly evolving whether that’s from expected or unexpected changes. So, while having a Will is great, what is vital is ensuring that it’s up to date.

A change in one’s circumstances can be anything from:

• Getting married;
• Getting divorced;
• Having children (or even grandchildren);
• Buying or selling property;
• Business ventures;
• Changes in your health.

It is recommended to review your Will every few years or when a big life event (such as those listed above) happens to check that you have got everything covered.

Updating your Will can involve something as small as adding an additional beneficiary (or the removal of one), distributing an asset you did not previously have, or even changing your executor or testamentary guardian.

If no changes need to made – no worries! But if a change does need to take place, it is paramount to address it sooner rather than later.

The Home Run – How Wakefields Can Help

Planning for your life after it’s been lived is process that may seem daunting, complicated or even unnecessary. However, at Wakefields Lawyers we aim to make the process as smooth and straightforward as possible.

So, whether you are wanting to update an existing Will, start from scratch, or just wanting to know a bit more about the process, contact an experienced team member at Wakefield’s Lawyers today on (04) 970 3600 or info@wakefieldslaw.com.

• Brooke Young (Solicitor)