Why Do I Need A Will?
Your Will sets out what you would like to happen to your worldly possessions and assets once you leave this mortal coil, you can leave specific things of sentimental or other value to specific loved ones whilst still providing for your family.
Without a valid Will the court will decide according to the Succession Act and it may not be what you wanted.
What Is An Executor?
This person carries out your wishes according to your Will. This is one of the most important roles for anyone to have in your end-of-life planning. We find that most people asked, are honoured to carry out this role.
What Is An Enduring Power Of Attorney And Why Do I Need It?
This document is required whilst you are alive but, in the event, you cannot make decisions for yourself, an Enduring Power of Attorney sets out who will make decisions about your financial affairs, this can include operating bank accounts, paying bills and for example, selling your home if you need to go into care. This power can however be tailored to your specific requirements.
What Is An Appointment Of Enduring Guardian And Do I Need It?
This document is also required whilst you are alive, but in the event, you cannot make decisions for yourself, an Appointment of Enduring Guardian documents sets out who will make decisions about your lifestyle, healthcare, personal care and medical care when you are unable to do so for yourself.
The Appointment should be someone that you trust.
What Is Probate And Letters Of Administration?
What Is Probate And Letters Of Administration?After your passing, the Executor of your Will, will administer your estate, carry out your wishes and finalise your worldly affairs according to the law.
The first step in this process is applying to the Supreme Court of NSW for Probate by sending the original Will, it is only after Probate has been granted that the Executor can properly undertake their role.
If you die without a will (intestate), somebody has to apply to finalise your worldly affairs whilst not knowing what you wanted. This process is called applying for Letters of Administration, which also involves the Supreme Court of NSW. The rules of how your assets will be divided are set out in legislation. This can result in unintended outcome for example; ex-partners inheriting your estate and your children missing out.
What Happens Without These Documents?
If you do not have these documents, other people will make decision for you, those decisions may not be what you would have wanted and the process may be unnecessarily time consuming and far more expensive than it need to me. We have also found that without these documents there will be a fight about what your intentions were, it is common for a rift to develop between family members, who each claim that they alone, know what your wishes were.
Do-It-Yourself Wills – What You Should Know
A DIY Will is any Will not prepared by a lawyer. Any “homemade” Will your executor submits to the Court for Probate is likely to be heavily scrutinised, costing you money and time. Despite a Will being the most important legal document you will ever deal with, many Australians opt to use the DIY Will to save money.
While making a Will to distribute your Estate may seem smooth and straightforward, some DIY Wills don’t hold up in Court. The assets outlined in your Will can drain away from taxes, costs and disputes over validity.
Are DIY Wills Valid?
Long story short – YES – but be careful! When it comes to handling complex situations, DIY Wills are rarely adequate. The way we speak and the everyday words we use can have different meanings in a legal context.
If a Court decides your Will is not valid, the default is to revert to an earlier Will or declare intestate.
Are you willing to take the risk with a DIY Will?
- Not Correctly Signed – Insufficiently executed or witnessed Wills can be deemed invalid or at least result in increased costs to prove it.
- Estate not disposed of correctly – DIY Wills often include assets the deceased does not officially own, such as jointly owned property and superannuation.
- Assets not dealt with correctly – many assets we believe we own outright are out of our control regarding estate distribution. For example, superannuation and life insurance clauses overruling whatever you write in your Will.
- Claims made against your Estate – Disputes arise when a family member or loved one challenge a Will’s validity. Typical dispute claims are fraud, forgery, coercion and challenging the contents or fair distribution of the Will. A good lawyer can help you distribute your estate fairly while making challenging a Will difficult.
- Uncertainty over the Will – While you knew exactly what you wanted as you wrote it down, others might not interpret it in the same way. If the asset or terms are explained, confusion will arise, leading to unnecessary costs in deciphering your Will.
Without a Will – intestate you will need to prove to the Supreme Court that there is no Will and this adds a lot of time and cost.
Why is it Important that my End-of-Life Documents are Done Properly?
Without a valid Will, the Court will decide according to the Succession Act, and it may not be what you wanted. Many places such as the Newsagency or the Post Office sell Power of Attorney, Enduring Guardian forms and Will Kits. They are very simple and can’t always encompass everything you wish. It is always better to have a solicitor review your documents to make sure they are correct. For example, all names should be fully written out, no nicknames.
When you pass away and your family goes for Probate, if the details of your documents aren’t correct then the Supreme Court can throw out the Will and make your family do Letters of Administration instead. Even the quality of paper used to print the documents are imperative, as if the forms look like copies then they may not be accepted.
Choosing the right solicitor who understands the process from start to finish is important and essential in making sure your wishes are preserved the right way.