03 Nov Do I Need a Will?
by Murray Cass
DO I NEED A WILL?
Do you have a family? Own property and other assets? Want to protect your loved ones? Do you have a current valid Will?
What is a Will ?
A Will is a legal document that directs how your assets are to be distributed after you die.
A Will may include details of your particular bequest to individuals or to organisations, and may also set out the appointment of a guardian for children who are under 18 years of age or who have special needs. It is sometimes case that will may include your preferred instructions relating to your funeral arrangements.
Why should I make a Will ?
Everyone over the age of 18 years who has family responsibilities or assets or investments should have a Will. That way you can be sure that should something unfortunate happen, your property will be given to the beneficiaries, and if you have young children, day will be looked after by the guardians you want rather than those chosen for you by the government and the courts.
We would all be wise from time to time to review our estate planning needs, including to consider updating or preparing a new clear and valid Will. A Will is a legal document which, as far as possible ensures your assets are distributed according to your wishes after youdie. Your Will may cover all your assets held in your own name such as your house, land, car, shares and bank accounts. It does not cover life insurance or superannuation. In the drawing of many hundreds of Wills over the years, I am gratified that one great living benefit that my clients take away from the exercise of drawing their Wills, is that they experience the immediate comfort of ‘peace of mind’.
In the busy lives that we will lead, it is easy to postpone our decision to draw or revise our Wills. The very essence of the purpose of protecting our estate, is lost when we delay completing what is clearly one of the most important documents in our lifetime. Postponement merely leads to our own disempowerment. We remove our choices to elect our preferred executors, to distribute to our nominated beneficiaries, and to decide generally how we want our assets and our earthly bodies to be dealt with upon our debt.
What happens if I die without a valid Will ?
Lawyers refer to this as “dying intestate”. Your property will be distributed according to the laws of the State or Territory in which you lived at the time of your death. Regrettably such distribution may not be the way you would have preferred that your property distributed.
Also as referred to above, dependent children who are left without a parent will have a guardian appointed for them under the laws of the State or Territory in which they live. Again, that may not be the person who you would have chosen to bring up your children.
The laws governing intestate distributions vary between the different States and Territories and how your property is distributed will depend on whether you die leaving:
- a spouse/partner and no children;
- a spouse/partner and children;
- children but no spouse/partner; or
- no spouse/partner and no children.
In some States and Territories, if you die leaving a spouse/partner, they will get your whole estate. In other States and Territories, they may only get a share of it and the balance will go to your children or, if you have no children, other relatives.
Who can make a Will ?
Anyone who is 18 years or older and has legal capacity can and should make a Will. A person who is under 18 years of age can make a Will in certain very limited circumstances:
A person who does not have legal capacity cannot make a valid Will.
Preparing your Will
The process of preparing a Will allows you to nominate how and to whom your assets are to be distributed, and who will manage the estate on your behalf. A Will is a complex legal document encompassing a number of legal requirements which must be followed to ensure that it is effective and valid. When discussing your Will your solicitor will seek from you your thoughts and express wishes such as:
- who to appoint the Executor or Executors and what are to be their powers?
- who are to be your beneficiaries?
- what are your current assets and liabilities?
- who should receive your assets and in what proportion?
- who to appoint guardian of your children and how you would like to provide for your children’s future?
- What are your preferred funeral arrangements?
While you can legally prepare your own Will and Enduring Power of Attorney, you should be mindful of the pitfalls in so doing, which generally arises at the time of your death, when the document is most needed. The term “intestate” means dying without a valid Will. In the absence of a valid or clear Will, the laws of intestacy may apply, where the Court will make decisions as to distribution of your assets in accordance with the intestacy rules (outlined in Part 3 Succession Act 1981 (QLD)), and in that event they will point an Administrator to carry out those functions. This may encompass a variation of your wishes, and add further costs and emotional burden upon your loved ones.
I invite you to call and meet with me for a free initial consultation. To the less mobile of our senior members of the community may I offer the benefit of a visit to you in the convenience of your home.
Murray Cass, Principal
Tel: 5655 2206
Suite 7, Mudgeeraba Manor Professional Centre,
75 Railway Street, Mudgeeraba