You have the right to decide how money, and assets should be dealt with after your death.
What is a Will?
A will is a legal document prepared for you setting out your wishes as to who should receive your assets including money, and personal property after death.
What makes a Will effective in Australia?
To make a Will valid and effective in Australia, it
- Generally it must be in writing;
- Must be Signed by the testator/testatrix, (the person making the Will);
- And must be signed by the testator/testatrix and by two witnesses who saw each other sign in the presence of one another.
The written record
The testator /testatrix can write his/her own Will or give instructions for a Will to be written or typed by a Lawyer. In both the cases, proper arrangements must be made for the signing of the Will.
The Will must be signed in the presence of two adult witnesses who are not interested parties. That means that neither of the Witnesses should be beneficiaries or recipients of gifts under the Will.
The beneficiaries and Executor/Executrix
Beneficiaries under a Will are the people who receive property of the testator /testatrix after death or hold guardianship of children in case of death under the Will.
A Will must appoint an executor/executrix, the person who is responsible to carry out the terms of the Will after the testator/testatrix’s death. You can appoint anyone over the age of 18 years to be your executor/executrix. More than one person can be appointed as executor/executrix of a Will.
The role of an executor/executrix can be onerous. He or she is required to make sure that all relevant parties are notified of entitlements and other matters concerning the deceased estate. An application for the Grant of Probate is usually required to be made with the appropriate Court so that an executor/executrix is able to pay debts, and distribute the assets of the deceased testator /testatrix after death.
A trustee is a person who assumes the responsibility for managing the assets set aside in a trust for the benefit of someone else. The trustee must use these assets only for the beneficiary’s benefit.
Appointing the right trustee is extremely important as he/she will hold a lot of power. This decision should be made after careful consideration.
A Trustee can also be appointed if any beneficiary is a minor, that is, under the age of 18. In this case, the trustee is responsible to hold and take care of the assets until the beneficiary turns 18 or some other condition or age is nominated in a Trust.
Why should you get legal advice to draft your Will?
There are chances of mistakes, and misunderstanding if you draft your own Will. A lot of issues may need special attention to make sure your Will is valid and is executed properly, so that your wishes are carried forward and put into effect after death. Legal advice for a Will should be obtained to safeguard your wishes.
Some issues that may need special attention and help of a legal advisor are:
- change in marital status (in case of marriage, separation or divorce);
- supporting your partner and your children;
- supporting your stepchildren or any other dependents;
- distribution of sentimental assets;
- distribution of assets, including joint assets, like real estate property;
- taxation of estate assets;
- superannuation and making a binding benefit nomination;
- to gain control of a company or family trust in the future;
- gift to someone before you die;
- consideration to stop challenges being made to your Will after death.
Death is always emotionally difficult to deal with. Dying without a Will can make it even more difficult for your loved ones. A Will is security for you to protect your loved ones even after you die.
A Will can be challenged after death by someone who expected to receive part or parts of your estate or was not satisfied with the gift received under your Will. It is important to discuss concerns, and protect your loved ones from potential challenges with a lawyer who can assist you to safeguard your loved ones and your wishes.
We can provide telephone assistance if required to discuss your Will or you may contact us through our website – https://www.maranofamilylawyers.com.au/our-services/