When the time comes, grieving the passing of a family member is never easy, and it’s important to ensure your family and loved ones aren’t left to pick up too many broken pieces during an already difficult time. It is therefore important that you consider having a will prepared and signed now and it is not possible to predict what may happen in the future.
At Kingsford Lawyers, we work with you to ensure that your will reflects your true intentions, minimises the possibility of your will being contested and is executed.
The question is asked all too often “do I need a lawyer to prepare my Will?” the answer is that if you want to ensure that your Will accurately encapsulates all your wishes and have the comfort of knowing that your Will will be legally binding and free from legality issues, then the answer is yes.
People often ask, “isn’t this something I can just prepare myself?”, and yes, while you could it is possible, it creates the potential for errors, omissions, and problems after your passing which may inadvertently be passed on to your grieving family. Further, the value of your estate may reduce and be diminished as a result of the executor and your family having to expend funds to fix an issue which could have been avoided, if your Will had been properly prepared and executed.
As wills and estate lawyers, the process of estate planning and writing a Will involves three important steps:
We understand that costs can play a big part in how someone may prepare their Will, but as you can see from the above information, not having a legally binding Will can lead to family-breaking events when the time comes that the Will needs to be relied upon.
When estate planning and writing a will there are several different types of assets to consider. These will fall generally within the following categories:
These assets will be distributed in accordance with the Will; however, consideration needs to be given about
Typically, when considering the interest that one has in a company you need to rely on the shares that person holds in the company rather than the asset itself, determination often relies on shareholders’ agreements and financial statements on the company. Further consideration and advice should be obtained for any tax complication that may exist in attempting to liquidate the assets of the company.
Superannuation and life insurance benefits typically aren’t listed under assets in a person’s Will as they don’t generally fall under the asset category. They are sums of money that are payable upon a person’s death and generally, the fund or policy will have nominated beneficiaries for these funds will go to.
When you are preparing your Will, you should consider addressing your superannuation fund beneficiaries’ nomination or self-managed superannuation funds trust deed to ensure these nominations are correctly completed and beneficiaries correctly identified, you need to ensure you are meeting the requirements for nominating beneficiaries following the policy of the superannuation fund as or else you could risk the nomination be non-compliant and invalid.
If no nomination of beneficiaries is made, or the fund deems the nomination to be invalid, then generally the fund trustee will distribute the funds of the policy to dependants which can be a spouse, children, or anyone able to demonstrate financial dependency to the relationship. It is recommended you seek legal advice when completing this nomination as often disputes can be raised by former spouses and children of the deceased.
Life insurance benefits/payments are also treated similarly to superannuation payments, and assessment is considered as to the nature of the policy and what the funds are intended to do.
To prepare a Will you must be over the age of 18 and your Will must be signed in the presence of two witnesses. It is recommended that everyone prepares and executes a Will even if you believe your Estate to be small in size. If you do not have a Will in place when you pass, or in other words, you die intestate, then your estate will be divided using fixed formula as per government requirements.
If you are the appointed executor of a person’s Will, it’s important you understand your obligations and responsibilities. Kingsford Lawyers can help advise you on these responsibilities correctly and assist you through the Probate application process which can often be rather complex and advice is always recommended. As an executor of a Will, you are responsible for:
Wills that are not prepared correctly can leave the Estate of a loved one undealt with, and the Will may not be executed to your loved one’s wishes, this is why it is important to seek the advice and assistance of an experienced Wills & Estate lawyers.
If the above mentioned steps are not included in the preparation of the Will or the family is relying on a home-made Will then this can potentially lead to family disputes following the death of a loved one, and you want to ensure your best wishes are left correctly to family and benefactors.
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