Why create a legal Will?

Any person aged 18 years or older should create a will. Creating a will allows you to leave directions for the administration and distribution of your personal property after you pass away.

What to consider for a Will?

One of the first things you will need to consider when preparing a will is whom you wish to appoint as your executor. You may appoint up to four executors and you will need to consider how they are to make decisions in situations where you wish to appoint more than one. In broad terms, the role of the executor is to carry out your wishes set out in your will. This will normally involve locating the will, applying for probate, administering the estate and then distributing the estate in accordance with your wishes set out in your will.

If you have minor children, your will should set out who you wish to appoint as their guardians, should both parents die prior to them turning 18 years of age.

With all people nominated in your will, you should consider alternatives in the event that your first preference should predecease you, renounce or be unable to act for whatever reason. You should also discuss the appointments with those people to ensure that they are aware of the appointment and ideally obtain their consent to act.

What are beneficiaries to a Will?

Your beneficiaries are those entitled to receive a benefit from your estate. You may leave your estate to whomever you chose, however consideration should be given to any person likely to challenge your will in the future. In Queensland, a married spouse, de facto spouse, children and a dependant can make a claim against a will if they believe that they were not adequately provided for by the will.

You may wish to divide your property amongst your named beneficiaries by naming each item or simply by a percentage of your estate to avoid having to make amendments on disposal of itemised assets. Due consideration should also be given to the age of each of your beneficiaries. Trusts can be set up for young beneficiaries where appropriate.

Family Trusts & Trust Deeds

It is important to remember that assets owned in family trusts of which you are a beneficiary will not pass under your will, and due consideration should be given to successor appointors where you are the existing appointor. We can assist in reviewing trust deeds to ensure that they allow for successor appointors to be nominated by your will. Superannuation and the proceeds of life insurance policies also may not form part of your estate and we can discuss this with you further as part of your broader estate planning.

What happens if you die without a proper Will in place?

If you do not create a will before you die, you are said to have died intestate and your assets will be distributed according to the laws of intestacy. Any family member may then apply to the court for letters of administration which will give them the power as executor of your estate to then administer and distribute your estate in accordance with the laws.

Why you should regularly update your Will?

Once you have created a will, it is important to review your will regularly. A change in your personal circumstances, such as marriage or divorce, the birth of a child or a death in the family may necessitate a change to your will. We recommend reviewing your will each year to ensure that it still adequately reflects your wishes.

Contact Tegan Boorman on 1300 941 900 or email (tboorman@boormanlawyers.com.au) to discuss your estate planning needs.

Read about the Reasons to reconsider your DIY Will Kit and How relationship changes can affect your Estate Planning on our Blog.

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