All of us have financial affairs to manage. The longer we live, the more assets we accumulate. Things like a home and its contents, a car, maybe a business and perhaps even an inherited property. It’s also compulsory for us all to have a superannuation fund and many of us take out insurance policies to cover a range of things from loss of income to death. Of course, many of us also have debits or liabilities; home loans, car loans, credit card bills etc.
Whatever the value of your assets and liabilities – known as your ‘estate’ – when you die, these must be passed on to another person. Other duties and responsibilities, such as making funeral arrangements and dealing with our personal possessions, also arise at this time. You need to give someone you trust the responsibility of making sure all your wishes are carried out. What is the procedure? How do you guarantee your wishes are honoured and your family protected? What if someone thinks your wishes are unfair? Can they object? What happens if you don’t make a Will at all?
The last question is probably the easiest to deal with. If you die without a Will, your estate is inherited by your ‘next-of-kin’. The law applies a formula to work out your next-of-kin. It’s very likely that person will be blood relative. But it may not be the person you wanted. If you have no next-of-kin, your estate automatically passes to the State Government.
These scenarios are not ideal because your true wishes won’t be met. To make sure you have the ultimate say in what happens to your assets after you pass away, follow these steps:
The six steps in the process of making a Will
Legally, the procedure for having your say about what occurs after your death is called ‘making a will’. The Testator (the person making the Will, i.e. you!) must do so in writing in a document of some type. Each Australian State has formal requirements for this document set out in specific legislation.
Many people choose to engage the services of a solicitor to help them prepare their Will. This can be a wise choice because of the differing requirements and legislation in each State. They are often the best choice to help you express your wishes in clear, legally-accepted language too. Other alternatives include purchasing a Will kit from a newsagency or post office or simply writing one out a piece of paper.
Note: Australian legislation does allow for some ‘wiggle room’ when it comes to the formalities surrounding the creation of a Will. But the Court must be satisfied, on the evidence available, that the Testator intended it to be his/her Will. To avoid this happening and the likelihood of a long drawn-out court proceeding, it’s best to ensure your Will complies with the formal requirements. Having them prepared, or checked, by an experienced lawyer is the best way to do this.
1. Signing and Witnessing
The Testator must sign the Will, and the law generally requires two people to witness this. They must physically be present to witness all signatures giving the Will ‘formal validity’. Think carefully about the witnesses you choose. If you choose someone who is named in your Will, or married to a person named in your Will, the Court may rule the gift to them is not valid. It’s always best to choose some who is independent.
2. Appointing an Executor/s
The second essential step is the appointment of one or more people as Executor/s of your Will. When you die, the Executor’s first duty is to make appropriate funeral arrangements. They must then identify the assets and liabilities of your estate. Lastly they must ensure these are dealt with according to your wishes. Usually an Executor engages the services of a solicitor to assist in having a grant of probate of the Will made by the Supreme Court, and to attend to other formalities. You should appoint someone who you feel has the time and ability to perform these duties.
3. Decide how your assets will be distributed
The third step is to decide who gets what. Gifts and directions in a Will can take many forms. You can express your wishes in dollar amounts, percentages, or gifts of specific items such as land, jewellery, household items, cars, boats, shares or named investments. All are permissible, as long as the words use in your Will are sufficient to describe and identify the subject matter. Whichever way you choose to divide your assets, the first rule is that ALL property should be disposed of. If you don’t, you can name a person (legally called a beneficiary) to receive a ‘residuary gift.’ This means they get any property or gift not specifically named in your Will.
Beneficiaries can be adults or children of any age living in any country. They can also be a company or a charity. The only rule is they must have they have a legal identity. In the case of child beneficiaries, Wills often also contain specific powers or instructions which states how and when they should receive their gifts. Consider the following when choosing your beneficiaries:
- Who gets what?
- When do they get it?
- Do any assets need to be sold first?
- Think through different scenarios. For example, do you want a person to be able to live in your house for the rest of their life but the actual house title goes to a different person?
- Do you want a ‘testamentary trust’? This occurs when you appoint someone else to manage your assets or your trust until your named beneficiaries are hold enough to take over
4. Deal with your debts
You must deal with your liabilities as well as assets in your Will. If you have a mortgage, you must provide for the payment of that debt. If you have credit card debts, or a car under finance, you must deal with how the debts are to be paid before your assets can pass to your beneficiaries.
5. Do you have a competing Will?
Making sure you have no other Wills that may cause confusion at the time of your death. It’s wise to make a statement in your current Will revoking any previous Wills. You can also clearly state that this is your last Will. This is important as it’s the most recent Will that is relied upon when you die.
Remember: this is your the last opportunity to say anything you wish about your estate. Take your time to clearly think about what you want and write it down. If you have a change of heart, you can always update your Will at any time to reflect your current circumstances.
6. Minimise the risk of someone contesting your Will
The law generally recognises that a caregiver or parent has a duty to provide for people who are dependent on them. For this reason, spouses and children are the most likely beneficiaries of an estate. However, you are within your rights to choose anyone as your beneficiary and decide what is or isn’t given to them. You can even write down the reasons for your decision. If you have no dependents, you might choose to leave your assets to a charity, friends or other organisations instead.
All Australian States have legislation intended to protect people who feel they have been unfairly left out of a Will. ‘Family provision’ claims may arise where there is a valid Will or if an estate has passed to the next-of-kin because there is no Will. The process of making a family provision claim is detailed here but we raise its existence to make an important point: be fair when choosing your beneficiaries. Act responsibly and you will minimise the chances of anyone contesting your last wishes. After all, contests can be lengthy and expensive and at the end of the day, can eat up the whole of the estate in question. That’s an outcome no one wants, especially when it’s your hard-earned dollars on the table.
We hope you found the information in this article valuable but keep in mind it is no substitute for legal advice. If you need further legal assistance with preparing your Will please contact us at Know the Law. We have a good network of lawyers who can help you should you need it.
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Adam Ahmed is an Australian international tax lawyer. Adam has over a decade of experience working at 3 of the big 4 accounting firms and one of the top tax law firms in Australia. He is currently the managing director of Adam Ahmed & Co. This article is reproduced from Adam Ahmed & Co.