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ABOUT WILLS AND ESTATES

  • What is a "will"?A will is an expression of your "will" about what should happen to your assets after you die. They can also include reference to guardianship of your young children, gifts you would like to leave and division of the residue of your estate. Every will is unique. Every adult should have one. It is the only way of making sure your loved ones will be taken care of after you have passed away. To make a will, you have to be aged at least 18 – or, if you are married, you have to be aged at least 16. You also have to be of sound mind.

    What should be in a will? Your will should say:
  • that this is your final will and it revokes all previous wills.
  • who your trustees and executorsare.
  • who the beneficiaries are and what they should get – give their full names and their relationships to you, and, if they are children, say how old they have to be before they get the property; say what happens if they die before you.
  • who you want as the guardians of your infant children
  • any special gifts you want to make to anyone.
  • any special requests for your funeral and what you want to happen to your remains. This can be taken care of by a separate memorandum of wisheswhich accompanies your will.
    What does it cost?Getting a will drawn up costs little, or nothing.  A standard will is cheap and it can save you – or your loved ones – a lot of heartache later.   I will usually attend to the preparation and signing of a standard will for $75.00 including GST. If it is more complicated to draft, I will give you a very competitive quote. I also give free wills out to all clients who buy of sell property using my services.
  • Administration costs:The major cost of a will is usually in its administration. If you name a trustee company or lawyer as your executor, their administration fees could take thousands of dollars off the value of your estate. For straightforward estates, trustee companies generally cost more than lawyers. Our hourly charge-out rates range from about $250 (excluding GST) per hour, so if the estate gets complex, costs can escalate.
  • Executors and trustees:Your "executor"carries out the instructions in your will. Your "trustee"is the person who looks after the property in your estate until the executor is ready to distribute it. Usually, the same people are appointed to do both jobs. You can choose anyone as executor and trustee. It can be a family member, a friend, a lawyer, someone from a trustee company, or some other professional. Unless your estate is very complex, a friend or family member should be quite capable of doing the job. This is especially so, when it realised that the executor instructs the family lawyer, to obtain "Probate"and to administer your will by gathering in the assets and distributing them in accordance with your will. If there is no will it is called "Letters of Administration". The lawyer takes instructions from and reports to the executor and trustee.You do not have to pay a family or friend to be your will’s executor, but they are entitled to claim reasonable expenses. If you do want to pay them, your will should say so. They might also need to hire an accountant to deal with tax issues. These costs come out of the estate.
  • It is generally best to choose two people as joint trustees and executors, partly because of the risk of your executor dying before you do. You might want to choose a professional and a friend or relative. For clarity, your will should say who makes the final decision if the executors disagree.
  • Beneficiaries:The beneficiaries are the people who will receive your property after you die. You will probably want to leave your property to loved ones, such as your husband or wife, or your children. You can also leave property to a family trust, or you can make a bequest to a charity or other organisation. It is almost entirely your decision who you leave property to. It is important to keep your will up to date. Whenever there’s a major change in your life circumstances, such as when you get married or divorced, have children, start a business, buy significant property, or inherit money, you should update your will. If you have children but do not update your will, they may have to go to court to get anything.
  • Guardianship:If you have children aged under 18, your will should say who their legal guardians will be if you and their other parent are dead.
  • Witnesses:Your will has to be in writing, and you have to sign it in front of two witnesses, who also sign it. You can’t leave anything to either of the witnesses or their spouses. If either of them is not present when you sign the will, it will be invalid.
  • Common Issues
  • Joint ownership:If you own property jointly with someone else, when you die the property will automatically pass to the surviving owner or owners, regardless of what it says in your will. But if you own the property as "tenants in common", your share of the property will pass to your estate when you die. You will need to take professional advice on this.
  • Marriage and dissolution (formerly called divorce):Marriage automatically revokes your will, unless your will specifically says it does not. Likewise, unless your will specifically anticipates it, formal dissolution revokes any part of your will relating to the spouse with whom you were previously married.
  • Family Trusts: Leaving property to a family trust can be an effective way of making sure it stays in the family after you die. For example, if you own a holiday house, you might want to leave it to a family trust. You can also leave detailed instructions to the family trust’s trustees, saying that the house is for the use of family members. If you are leaving property to a family trust, you need to say in your will that you forgive any debts the family trust owes you. Otherwise, the trust might be forced to sell the property you are leaving to it, so it can pay the debt it owes your estate. Again, you will need professional advice.
  • Moral duty:In some cases, the law says you have a "moral duty" to provide for close family members in your will. If you don’t, those family members might challenge the will in court.  Say you have three adult children, but you have been feuding with your eldest son for years. If you leave everything to your other two children, the eldest son can challenge the will in court. If the court finds that you have a moral duty to provide for him, it may award him a share of the estate. The same thing could happen if you ignore ex-nuptial or adopted children.
  • Death-bed promises:Sometimes, your will can be overturned because of a promise you made shortly before your death. Say you are bed-ridden and you hire a caregiver, telling her you can't afford to pay much but you'll see her right in your will. If you don't keep that promise, your caregiver may successfully challenge the will.
  • Sound mind:A will can also be challenged if you weren’t of sound mind when you drew it up. If you or I suspect this might happen, we will place a medical certificate with the will attesting to your mental health at the time of signing the will.
  • Insolvent Estate:If there is little or nothing in your estate, priority will generally be given to paying your funeral costs and executors’ expenses. Sometimes, people leave debts behind when they die. Generally, these will be paid from your estate. But if your estate is not worth enough to pay off your debts, they die with you. The beneficiaries of your will not inherit them.
  • De facto couples:If you have lived in a de facto relationship for more than three years and you die without leaving a valid will, your partner can either receive half of the relationship property or accept what they would be entitled to under the Administration Act. If you have lived in a de facto relationship for less than three years and you die without leaving a valid will, there is no guarantee your partner will get anything. Your partner will only receive a share at the court's discretion.