A will is a legal document that appoints somebody you trust to manage your affairs and directs who should receive your assets after you die. Your will should make your wishes clear, avoid confusion and conflict amongst your loved ones, and be legally valid and binding.
Involving a lawyer to prepare your will can prevent issues regarding its validity and can help structure your estate for maximum benefit. When preparing your will, we consider your individual circumstances including your superannuation. We will also ask about your family structure and take steps, if necessary, to minimise the potential for disputes to arise after you die.
Choosing your Executors
An executor has the legal and administrative task of sorting out your assets and debts after you die and making sure that your wishes as outlined in the will are upheld. You can appoint more than one executor or an alternate executor as a backup in case your first choice is unable to act in the role
Executors have many responsibilities. These typically include arranging your funeral, identifying and protecting assets, claiming under insurance policies, obtaining probate, paying accounts, and collecting and distributing your property according to your will. If the will is disputed, your executor will need to deal with the dispute and give instructions to legal representatives in the event of litigation being commenced.
You should consider whether your proposed executor is:
- willing to accept the role
- capable of managing your estate in terms of their health and circumstances
- suitable to manage your estate in terms of having the experience and confidence to deal with your affairs in the manner you would like
- able to act impartially, which is particularly important if you foresee potential disputes over your estate
- likely to outlive you
Choosing and Protecting your Beneficiaries
You can designate anyone as a beneficiary and distribute your assets in any way you like however if you do not provide for your family and dependents, there is a risk that your will may be contested. You should also consider the effects that an inheritance may have on your beneficiaries. In some cases, a testamentary trust can sidestep potential problems, so it is important that you get specific advice about your situation.
What is a Testamentary Trust
A testamentary trust is a discretionary trust contained in a will that comes into effect when a testator dies. A trustee is pre-appointed to manage the trust and distribute assets to beneficiaries in accordance with the rules outlined in the trust deed.
While trusts can be complex and there are ongoing costs involved, they can help protect assets and beneficiaries in a number of ways. For instance, if a person wants to leave gifts to young children, or otherwise vulnerable individuals, a testamentary trust can assist in ensuring that funds are used to benefit them. A testamentary trust can also help protect assets from third parties, for example, if a beneficiary is at risk of bankruptcy or being sued.
How often should I review my Will?
You should certainly review your will after any major life events, such as:
- the birth of a child
- separation or divorce
- commencing a new domestic relationship
- the passing of a beneficiary or executor named in your will
- buying or selling major assets such as real estate
- starting or investing in a business venture
- receiving an inheritance or disposing of a major asset
- a change in your health circumstances
We also recommend that you take a look at your will every couple of years just to make sure that it still reflects your intentions and is structured to safeguard your assets and protect your family.
We have seen first-hand the pitfalls of poorly drafted wills that do not take full account of the testator’s circumstances nor implement strategies to protect assets and minimise disputes. We will ask you the right questions so you can consider the many contingencies involved in preparing a will and effective estate plan.
If you need assistance from an experienced wills and estate planning lawyer, contact [email protected] or call 02 7256 7050.