Many people do not have a Will prepared, but everyone needs a Will!
A Will is a document which sets out what you want to happen to your assets after your death. The people you have given your assets to in your Will are known as beneficiaries. Your Will nominates a person to be the executor of your estate. Your executor is responsible for following your wishes set out in the Will, including arranging for your assets to pass to the beneficiaries in your Will.
Wills are not just for the wealthy or people who own a home, if any of these apply to you then you should consider preparing a Will:
If you do not have a Will, you have no control over who inherits your assets after your death. The Succession Act sets out who receives someone’s assets if they die without a Will, and this list may not be want you want to happen.
Most parents don’t want to imagine a situation where their children are forced to grow up without you here to look after them. However, sometimes tragic circumstances strike and it is important you have the necessary paperwork in place to ensure your children will be taken care of if you’re not here. We can include a paragraph in your Will, nominating who you wish to be the guardian of your children if you are not here.
Sometimes people might also feel very strongly about NOT having someone step in as guardian of their children if they pass before they turn 18 years. We can also include this in your Will and, if you wish, the reasons why you do not want that person to be appointed guardian of your children.
It is important to discuss your wishes with your proposed guardian before you organise your Will because the appointment of a guardian is a guide only and is not binding on that person if they feel unable or unwilling to step into the role of guardian.
If you have a Will before you are married, then the Will becomes invalid when you get married – unless the Will states it was made in contemplation of getting married.
If you divorce after making your Will, then your Will is not invalid but any gift to your former spouse will fail. The gifts to other beneficiaries in your Will are still valid and will still pass to the appropriate person. However, if your former spouse is listed as executor then this will also fail and you may be left without a nominated executor in your Will.
If you separate from your spouse but do not divorce, you should update your Will straight away because until you divorce, any gifts to your separated spouse will still be valid.
Superannuation does not usually form part of your Will. We recommend you contact your superannuation fund to find out how they will pay your superannuation in the event of your death. Often a superannuation fund will ask you to complete a form nominating who receives your superannuation after you die.
Generally, you have the right to leave your assets to whomever you choose when you die. However, it is always possible that someone may challenge your Will, particularly if you do not leave assets to someone who would ordinarily expect to receive a share of the estate. This is a complicated area of law and, if you are considering leaving someone out of your Will, it is important to discuss this with us when we prepared your documents.