Making a will can feel like a complex and often daunting task, however carefully planning your estate is an important part of ensuring your family is protected financially in the event of your passing. The following is a simplified guide to preparing your will, detailing the key requirements and key factors that you should consider to ensure that your assets are distributed as you intend.
The importance of preparing a will
A carefully prepared will is the most important feature of a thorough estate plan. A will covers important issues including how your assets will be divided, who will receive these assets and who will look after your children if they are minors. Your will becomes your voice when you pass and is your opportunity to ensure that your family is financially protected in the way you intended. Preparing and updating your will regularly ensures that your family is not put through the added pain of legal challenges when you pass, exposing them to unnecessary financial and emotional burdens.
Key factors to be considered
There are a number of key factors to consider and include when preparing your will. This includes an accurate and thorough list of:
- Assets you have
- Debt you owe
- What assets and gifts you wish to give away
- How you wish to divide your financial assets
- Who will take guardianship of your children
- People you want to include in your will
- Who you will name as the executor of your will. This is the person in charge of the distribution of your assets
Preparing your will
There are a number of other important, legal considerations to make when preparing your will. This includes ensuring your will is prepared in accordance with the strict requirements and rules including;
- The will must be in writing
- Witnesses must not be a beneficiary in the will or be married to, or a domestic partner of people mentioned in the will.
- Beneficiaries must be clearly identified
- The Executor must be clearly identified
- The will must be dated and signed correctly
- You must have testamentary capacity when preparing and signing the will. This means that you must both know and understand the nature and effect of a will and the approximate value of what you have to leave in the will
Whilst you may personally prepare your will and estate documents, doing so leaves you at risk of having documents that are not legally enforceable or are susceptibility to challenges. Hiring a professional estate lawyer to prepare your will and estate saves your beneficiaries from paying costly fees later to defend your will and intentions.
What happens when you pass away
Probate
When you pass away, your executors will locate your will, many people choose to keep a copy of their will with their estate lawyer. Following this, the executor will obtain a court ruling, confirming that the executor has authority to carry out your will and that the will the executor holds is valid. After ensuring that your beneficiaries know about your death through a posting in the local paper or otherwise, your executor may take an application to the Supreme Court for a grant of probate to begin distributing your assets.
Distribution of assets
Before distributing your assets, your executor will first pay any debts you owe and collect any debts owed personally to you. Following this, the executor will first distribute any specific gifts you have listed in your will. Once this is complete, the executor will obtain a valuation of other remaining assets and will sell them. Your family members will have the opportunity to first buy these at their estimated value.
All money from these sales goes into a total sum known as the “residual estate”. After paying taxes (these can be considerable on property left to your beneficiaries) and legal or other fees, the executor will then divide the remaining money in accordance with your wishes as set out in the will. If the will is not contested, this process will normally take between three and six months. With the support of an experienced estate lawyer to guide you through this process, you can be assured that your family will be protected in the event of your passing, and that your will remains the final and accurate voice of your lasting intentions.
ABOUT THE EXPERT:
Laura Costello is in her third year of a Bachelor of Law/International Relations at Latrobe University. She is passionate about the law, the power of social media, and the ability to translate her knowledge of both common and complex legal topics to readers across a variety of mediums in a way that is easy to understand.
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