A Will is a legal document recording how you would like your property and affairs dealt with after you die. It appoints somebody you trust to administer your estate (your executor/s) and nominates the people to whom you wish to leave your assets (your beneficiaries). If you die leaving a valid Will, your executor must gather and distribute your assets in accordance with your wishes.
An effective Will is one that helps to protect and maximise your hard-earned assets and provides clarity for your family when you die. Like many other aspects of your life, it is sensible to review your Will regularly, perhaps each year when you are reviewing your financials and preparing your tax return.
We can assist you to review your existing Will to ensure it is valid, and to check that it really does reflect your wishes.
When should you review your Will?
Changes in your life can create problems for others when interpreting your wishes in an existing Will and may undo the effort you have put in to protect those close to you by making one.
A significant change in your personal or financial circumstances generally means you should consider reviewing and possibly updating your Will. Your Will may no longer reflect your wishes, and certain changes in your life may even make your Will or parts of it ineffective or invalid.
Reviewing your Will is particularly important when:
- you marry, separate, divorce, or start a new relationship
- you have or adopt a child
- a beneficiary or executor named in your Will dies
- there is a major change to your health
- you buy or sell property, start a business, or acquire company interests
- you sell or dispose of specific gifts that have been nominated in your Will (for example, you sold a property that you had left to someone)
- you receive a windfall or inheritance
- there are changes to your superannuation, personal insurance, or tax levels
- you become involved in a trust
While your Will may already be drafted to contemplate some of these events, a quick review can identify whether changes are needed to reflect your new circumstances.
Usually, if you die without a Will, your next of kin will also need to apply to the court for letters of administration. Once granted, the applicant is appointed administrator and may then deal with the estate in the same manner as an executor would after receiving a grant of probate. Dying without a Will can cause delays, add further costs to the estate administration, and often brings uncertainty to the family left behind.
Superannuation
When reviewing your Will, we recommend you also check your superannuation and life insurance, which often forms part of your super policy.
Many people assume that their superannuation is automatically included in their Will, but that is not necessarily the case. You should look at your superannuation policy to check how you have nominated any funds from your super to be distributed after you die, and that it is still allocated in the way you want. You may also wish to discuss with a finance professional the most tax-effective distribution of your superannuation funds. We recommend that your superannuation beneficiary nomination should be both non-lapsing and binding.
Choosing your executors
Executors should be chosen with care and sometimes, for various reasons, you may need to update your Will to change an appointed executor.
The primary role of an executor is to distribute your assets in accordance with the instructions in your Will and finalise your legal affairs. The role includes duties such as identifying and protecting assets, applying for probate if necessary, claiming funds under insurance policies, closing bank accounts, paying debts and distributing or transferring assets to beneficiaries. If the Will is disputed or a family provision claim is made against the estate, your executor will need to deal with these issues and will need our assistance to defend your Will.
An executor should be somebody you trust and who is willing and able to accept the role. For simple estates, a spouse, or adult child/children (or combination) may be appropriate choices to oversee the administration and finalisation of the estate which is generally carried out under the guidance of a lawyer.
For more complex estates with business interests or that will have ongoing trusts, it may be preferable to appoint a professional with expertise in this area.
We have a wealth of experience and provide expert Will drafting and estate planning advice tailored to our clients. We can draft and update your Will to ensure that your assets and beneficiaries are protected and the most tax-effective distribution of your estate is taken into consideration. We can also provide advice about ways to help minimise potential disputes over your estate when you die.
If you need assistance, contact one of our lawyers at [email protected] or call 02 4297 6066 for expert legal advice.