According to the NSW Government, 45 percent of adults in Australia don’t have a Will.
What is Estate Planning?
Estate Planning is the process of developing a strategy to manage your assets and investments when you die. Estate Planning allows you to be prepared in the event of your death and thus remove some of the stresses placed on family and loved ones. One of the main phases of Estate Planning is the preparation of a Will.
What is a Will?
A Will is a legally binding document that appoints an executor and nominates who will receive your assets when you die. Making a Will is the only way to ensure that your assets are distributed to your intended beneficiaries. If you die without a Will, your assets will be distributed based on a predetermined formula set out in legislation across each jurisdiction. Only by preparing a valid Will can you determine with some certainty the future management and distribution of your assets.
Estate Planning may be one of the most important legal considerations you will make in life. Getting effective legal assistance in your estate planning is crucial.
How it Works
An individual who makes a Will is known as the testator or Will maker. This person is usually advised by a legal professional who prepares the Will and explains its contents before the Will is signed.
The person tasked with managing the administration of the Will is called the Executor. This person must be specifically named in the Will by the Will maker. The Executor may be a trusted family member or friend, a legal practitioner or an accountant. A Will maker may appoint more than one executor which may be advisable in many circumstances.
Being an executor is a difficult role and requires the management of various tasks such as making funeral arrangements, collecting assets, paying debts, applying for Probate with the Supreme Court (if necessary) and dealing with agents, accountants, financial institutions and beneficiaries. See here for a more comprehensive list. Due to the complexity of the role, executors are usually guided by an estate lawyer.
The person or persons set to inherit or gain under the Will is called the beneficiary or beneficiaries. Beneficiaries usually include the spouse, children, other family members, close friends or trusts and charities. It is important to name beneficiaries clearly and carefully in your Will.
How to Ensure Your Will is Valid
- A Will must be in writing. Handwritten or typed is fine.
- A Will must be signed by the person making it.
- A Will must be witnessed by two adult persons who are not named as beneficiaries and unlikely to receive any benefit under the Will
- The Will maker must have legal capacity to make the Will – essentially this means that the Will maker must understand the nature and effect of the proposed Will at the time of making it, and not be incapacitated through mental illness or disease.
Can I Prepare My Own Will?
While it is possible to purchase Will kits and instructions on writing Wills, it is not advisable to do so. Remember, this is probably the single most important set of instructions you will make in life, so it is important to seek professional help from a lawyer to provide solutions to ensure your Will is legally binding and that your wishes are carried out the way you intend.