A Will ensures that the people you care about receive your assets in accordance with your wishes. We can give you unbiased advice on the best way to arrange your affairs and distribute your estate. We can also assist your executors on what needs to done and the necessary steps to be taken. Your Will is not affected by separation but upon divorce, any benefit given to your former partner is revoked. We recommend you seek our advice in relation to your Will at the time of your separation or divorce. We can prepare a Will for you if you’re 18 years old or over, or you’re under 18 and are or have been married.
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What is a will?
A will is a written document which sets out your wishes for the distribution of your property upon your death.
Does it matter if I die without a will?
If you die without a will, the Administration and Probate Act sets out how your estate is to be distributed:
- If you have a partner, but no children, then your entire estate passes to your partner;
- If you have a partner and children, then your partner will receive the first $100,000 of your estate plus half of the balance with your children receiving the other half in equal shares;
- If you do not have a partner, but are survived by children, your estate is divided equally between them;
- If you do not have a partner or children, but have relatives, your estate will be distributed to them;
- If you have no partner, children or relatives, your estate will go to the State.
Consider this scenario:
John is married and has three young children. The house in which they live is owned solely in John’s name.
John becomes sick and dies, without a will. John’s wife is entitled to buy the share that would othewise have passed to their children. This may place her under financial hardship. An application could be made to the Court to postpone the sale until the children reach the age of 18 or she could make an application for a greater benefit. These options result in legal costs and add stress and uncertainty to what would already be a very difficult time.
I’m ok. I have a will already. I did it years ago!
Are you still happy with your choice of executors? Have you had further children or grandchildren? Do you want to leave a specific gift not included in your current will or is a beneficiary no longer living? Have you separated, re-married or divorced?
You should review your will with your solicitor when your circumstances change.
What about a will kit?
Mistakes made using will kits and home drawn wills create a lot of work for lawyers correcting and explaining errors.
I can have my will prepared for free by a trustee company.
If you choose a trustee company to draft your will be aware that, although it may make no charge for drawing a will, it may charge commission for the administration of the estate. The Public Trustee charges on a sliding scale but, as an example, on an estate the gross value of which is over $600,000 the Public Trustee charges $19,800 plus 1.1 cents for every dollar above $600,000. Solicitors should charge on the Supreme Court scale only for work done. Solicitors should provide an estimate of fees when engaged.
Who do you want to be your executor?
Your executor is responsible for:
- Locating the original will
- Making sure appropriate funeral arrangements have been made
- Ascertaining the assets of the deceased
- Paying any tax liabilities that have accrued as at the time of death
- Obtaining a grant of probate, if required
- Informing beneficiaries of their entitlements
- Bringing in the assets of the deceased
- Attending to payment of the funeral and other estate expenses
- Paying all liabilities of the deceased
- Protecting and insuring any property owned by the deceased prior to its distribution
- Distributing specific gifts
- Transferring the residue of the estate to the residual beneficiaries
- Ensuring required tax returns are prepared and lodged
You should appoint someone you trust who you think will follow your wishes. You can appoint your partner or your children as executors.
And a few more things ...
If you marry after having made a will, that will is no longer valid, unless it states that it was made in contemplation of that particular marriage.
Getting a divorce will not revoke your will, but any gifts to your former spouse are revoked as is any appointment of your former spouse as executor.
Separation has no effect on a will so a spouse can still inherit. It is important if you separate to make a new will as any gift to your spouse will remain until you are divorced.
At Swan Family Lawyers we are experienced in drafting wills and would be pleased to assist you in the preparation of yours.