Your Will – You need to have the unpleasant conversation.
Understandably, talking about your own death can be difficult and the topic is not always easy to bring up. Consider this – it’s highly likely that you have an Insurance Policy in place to protect your home and/or vehicles in the case of unforeseen circumstances. We’re sure you see your doctor to manage your health because you care about living a long and healthy life. You engage your accountant to ensure your taxation and finances are in order each year, yes? Well, after all of these great efforts, have you engaged a professional advisor to determine what happens to your loved ones, money and belongings if you were to pass away unexpectedly? Seems logical to have the protection of your loved ones at the forefront, considering all the other areas you place importance on for the same reason.
Making a Will is very important and there are many reasons why you should have a valid one.
Some of these reasons include:
1. The ability to decide how your assets are distributed and to whom.
If you pass away without a Will (known as passing away intestate) you do not have a say about who will benefit from your estate and how your assets will be distributed. Instead, State intestacy laws decide how your assets will be divided.
2. You want to determine who oversees the role of administering and making final decisions about your estate.
Wills allow you to appoint your legal representatives (executors) to manage and administer your estate when you pass away. This is a very important role because an executor is responsible for proving the Will (known as probate), administering your estate, and ensuring that your wishes in the Will are complied with.
3. You want your beneficiaries to be looked after.
Having a Will allows you to have a say in who should be the legal guardian of your children until they turn 18 in the event of the death of both parents. If both parents have passed away and not made a guardianship appointment in their Will, determining who should be guardian of the children can result in significant costs both financially and emotionally for all involved. Having a valid Will also ensures your beneficiaries a streamlined process to get timely access to your assets, through a ‘probate application’. If you pass away without a Will, it would be necessary to apply for a ‘grant of administration.’ This is generally a more complex, expensive and time-consuming process than a probate application. Your estate may take an extended period of more than 12 months to settle, and the cost may be significantly more than if you had written a Will at first instance.
4. Reducing the likelihood of conflict in relation to your estate after your death.
Having a clearly articulated and drafted Will ensures that families find a more peaceful way to settle the estates of their loved ones with minimal costs, than can otherwise come out from the estate.
5. Being a business owner
If you have a business, ensure that your executor can continue operating the business immediately after your passing, and without having to wait for probate of the Will. If you pass away without a Will, your family members would need to urgently apply to the Supreme Court (at significant expense) for orders giving them the right to continue operating your business
Here are some examples of the consequences that can occur when people passing away DO NOT have a valid Will.
A widowed spouse re-marries later in life, leaving the children from their first marriage. If they pass away without a Will, State intestacy laws dictate that the new spouse receives the entire estate and children from the first marriage are left with nothing.
A person indicates that they want their estate to be divided a certain way shortly before passing, without preparing or signing a formal Will. When an informal, electronic Will is deemed not valid by the Court.
This example occurred a few years ago with a doctor in Queensland who was in a de-facto relationship for 18 months prior to her passing. The doctor had two children from a previous marriage. The doctor created a Will three months before she passed away leaving her main residence to her de facto partner and leaving the balance of her estate to her parents and two children. Two weeks before her passing the doctor typed out a new Will on her computer where she left her de facto partner out of the estate and left everything to her children and parents. There was evidence that the doctor and the de facto were living apart at the time of her death, and hence no longer in a relationship. The doctor’s family applied for probate of the informal, electronic Will but were ultimately not successful on the basis that the Court was not satisfied that the doctor intended the electronic Will to be her final Will. Accordingly, the Will that the doctor signed three months before her passing, where she left her main residence to the former de facto partner, was held to be her final binding Will.
The above are good examples of why you need a valid Will, and why your Will should be updated if you go through life-changing circumstances such as separation or the death of a loved one.
Online & DIY Wills
Purchasing a DIY or online Will kit can be fraught with risk. Your wishes may not be properly reflected in these documents. There may also be more intricate estate planning required to suit your own individual needs which may not be captured by a DIY kit. We encourage you to start discussions about a Will or Estate Plan with your trusted professional advisors.
Today is the day to start protecting your loved ones!
Article written by Sanin Pasagic – Principal Lawyer Parkston Lawyers
Our team at Highview have worked closely with Sanin and his team at Parkston Lawyers for over 10 years. He is a Highview Trusted Specialist that we refer our clients to with confidence.