What is a
will?
A will is a legal document which
sets out who’ll receive your property and possessions when you die.
When you have a valid will, you
give yourself the best chance of making sure your assets go where you want them
to. So you should always make a will if you have a family or if other people
are financially dependent on you.
What
makes a will valid?
A will generally needs three
things to be valid:
- It must be in writing (whether handwritten,
typed or printed)
- It must be signed, and
- Your signature must be witnessed by two other
people who also need to sign the will.
But even where you’ve met these
three requirements, your assets can’t be distributed immediately. Sometimes, a
court needs to grant probate first.
What
happens if you die without a will?
If you die without a valid will
(known legally as ‘dying intestate’), a standard formula is used to distribute
your property and possessions. Usually, this means all your assets will pass to
your spouse or children.
But the situation becomes much
more complex if you have a legal spouse and a de facto spouse (ie you’ve
separated and have a new unmarried partner), if you have children from
different relationships, or if you die with no spouse and no children.
The court’s formula usually also
only lets your family members inherit from you. So having a valid will is vital
if you want to leave gifts to friends or charities.
Who makes
sure your wishes are carried out?
When you make a will you’ll need
to appoint an executor and trustee, who will handle your affairs when you die.
People usually choose one person to perform both roles, but you can name
different people as executor and trustee, and you can name as many executors as
you like (although appointing more than two can complicate things).
An executor’s role is to obtain
probate, pay your debts, and distribute your assets in line with your will.
Generally, a trustee administers
any trusts set up in the will.
This usually happens where you leave assets to
people under the age of 18. Before you nominate someone as an executor or
trustee, you should make sure they’re comfortable taking on the responsibility
you’re giving them. It’s often a good idea to appoint someone younger than you,
or to nominate reserve beneficiaries, in case the ones you’ve appointed die
before you do.
Because of their expertise in
administering wills, people often choose to appoint their solicitor as
executor.
Can you
change your will?
You’re free to change your will
whenever you like. And you should always change your will when your
circumstances change – for instance, if you divorce or remarry, or if one of
your beneficiaries dies.
But you can’t just change your
will by crossing something out and writing something different.
Instead, where you want to make a
minor change, you’ll need to make a codicil – which is effectively an
authorised amendment to the will. As with a will, a codicil needs to be in
writing and signed and witnessed by two people.
Where you want to make a major
change, you’re usually best off making a whole new will.
What
happens if you marry or divorce?
Generally, getting married
cancels the terms of any will you’ve previously drawn up. But there are
exceptions, which your solicitor can explain to you.
If you divorce, it cancels any
gift you made to your former spouse under your will. It also cancels their
appointment as trustee, executor or guardian under your will, except as trustee
for property left to any children.
You should always make a new will
if you marry, divorce, or if you’ve been separated for a long time.
Who can
you leave your assets to?
You can leave your assets to
whoever you like, but you have a general obligation to provide adequately for
your spouse or de facto partner, your children, and any other dependents. If
you don’t they can bring a claim against your estate.
Where
should you keep your will?
You should always keep your will
in a safe place and let your executor know where you’ve put it. That’s because,
if you misplace your will and no one can find it, it won’t be effective. Your
solicitor can store your will for you (usually free of charge) and give you a
copy for your own records.
Some people also choose to give
their executor a letter of instructions separate to their will, letting them
know their intentions in more detail.
If you need assistance in preparing a will, speak to G&B Lawyers.
M: 0481 287 528
E: info@gandblawyers.com.au
W: www.gandblawyers.com.au
GPO Box 1849, Sydney,
NSW 2001
