Do I Need A Will?

For most working people over the age of 18, preparing a will is a necessary process that is commonly overlooked. Probably because no young person wants to dwell on their own mortality, or possibly even because they are not educated on what exactly a will ensures after you pass.  Preparing a will ensures that your belongings, property, and assets will be distributed how you choose, and you will get to decide the way this is completed. Additionally, it makes the process much more simplified for your family and loved ones. So, if you have recently become a parent and are now raising a family of your own, keep them in mind and think about the future when you plan for them. After all, the one who plants the tree is not the one who will enjoy its shade, it is planted for the shade of the future – Chinese Proverb. The same can be said for Wills and estate planning, you can provide the people you love with ‘shade’ (inheritance) after you have passed, or they can help provide you with ‘shade’ (decision-making help) if your mental capacity was to deteriorate, with a nominated Enduring Power of Attorney.

What does the Will put in place?

Having a valid and legally enforceable will in place will ensure:

• Your assets are distributed as you wish.
• You can specify heirloom recipients, by selecting who will receive individual items when you die. For example, a mother can specify that the necklace of her mother and grandmother before her, is to be given to her daughter after she passes. This process is called beneficiary nomination, and this ensures that those who wish to receive your personal items will.
• What you want to be done with your body can be specified, weather this is burial, cremation or any other process you wish to nominate your family of. For example, a retired military serviceman may want to be buried in his military uniform, and this can be specified in his will.
• Having a will also ensures that the person you must trust with the responsibility of administering your estate can be appointed upon nomination.
• The very real risk of family collapse and bitterness is minimised as people come to terms with getting what they were appointed by you.
• You can also appoint a guardian in the event of your death at the time of your children being under the age of 18.
• Ultimately, having a valid will in place will mean that the rules of intestacy will not apply to your assets, which apply if you have no valid will in place.

What happens when I do not have a will and what are the rules of intestacy?

Without a valid will, your assets will be dispersed under the law and the rules of intestacy, these rules are commonly scrutinized by families as they bring upon them hardship, delay, unnecessary expenses, and family tension. Essentially, with no will, none of your wishes can be noted as they have not been clearly expressed in the will. Not having a will in place can put your family in complicated scenarios, for example, your spouse / domestic partner can be given much more of your estate than your children, and this may go against your wishes, yet without a will this is what will ensue. Each situation varies in complexity based on your familial situation, having a will ensures that this is taken care of and your assets are dispersed as you wish.

How do I go about the process?

You can get your will written by a solicitor for a fee, or by a public trustee. The rise of online ‘will kits’ is something you may have heard of, however, to be sure that everything is done properly and will stand as valid after you pass, ensure that you have this checked over by a legal professional and signed by witnesses. The issues and unforeseeable dangers that can arise when using ‘will kits’ is that they are only kept by you, so if anything is to happen to it, or it is to become lost, your wishes may not be fulfilled. For a will to be valid it needs to be written down, signed, and witnessed by two people who are not your heir or spouse and be in line with all South Australian guidelines. When having a will drafted by a lawyer or solicitor, this ensures that everything will be legally valid and that they will also keep a copy of your wishes, in a safe place.

What happens to my will after my situation changes? i.e., Marriage or Divorce

It is crucial that as your life situation changes, your will is updated accordingly. For example, if you:

• Get married.
• Get divorced or separate from your partner.
• Have children of grandchildren.
• Have significant financial changes.
• Have disposed of assets mentioned in the will.
• Lose your spouse, or any other named person in your will through death.
• Your wishes change and you wish to include someone not mentioned or exclude someone previously mentioned.

Upon consideration of the will, there has been inequalities that may eventuate as a result of fluctuating property prices, where for example, two beneficiaries receive a property each but do not get equal amounts of monetary remuneration because one property’s value far exceeds the other, so the asset pool is combined and then split equally.

However, specifically when it comes to divorcing a spouse that you were married to at the time of signing of your will, it may well need re-writing or even complete revoking if your former wife or husband was the listed beneficiary or executor. It should also be noted that valid wills can be made in contemplation of marriage or divorce, which will not need to be re-written when either event is to occur.