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A will is one of the most important legal documents that you need to have. However, it is crucial that you write your will carefully, with legal advice, to avoid any legal battles in the future. A will or Last Testament is a legal document that formally declares the distribution of your assets after your death. It gives you a final opportunity to provide for your family and dependents after you die while avoiding any confusion, legal battles, fees, and taxes. Before learning how to make a will, you must know why you need a will in the first place.
Why do I need to make a will?
The formal document simply outlines your wishes for the distribution of your assets and ensures that it is the only legal way to do so. It helps avoid potential arguments between your family members. Additionally, it is a final and definitive statement of your intentions which can also include requirements for your burial.
However, if you die without a will, it will be dying intestate. In this case, the Court will rely on a standard formula to decide the distribution of your estate. The Court will appoint an Executor who will distribute your assets among your family members. However, the Executor may not carry out any of your personal wishes if you die intestate.
Additionally, the Court will charge additional taxes and fees to your estate. It implies that your dependents will receive a lesser share of your hard-earned money, a major part of which will go to fees and taxes.
Also Read: Here’s What Happens If You Die Without A Will In Australia
It’s usually preferable to make a will as early as possible, simply because death is unpredictable. However, a few life-changing events such as marriage, separation, divorce, starting a new business, having children, and more, maybe a good time to assess and amend your will as needed.
What are the other different types of wills?
There are usually two other types of wills.
Mirror Will
Mirror wills are identical wills that essentially leave the estate to the same beneficiaries. For example, married couples will often have mirror wills because they have the same wishes for the distribution of their individual and joint assets. It goes to the survivor and then to their children. The only difference in their bequests is the name of the Testator, who is essentially the person who makes the will, and also any witnesses present at the time of signing.
Living Will
A living Will sets out the medical care that you would wish to receive in the event that you lose your mental capacity and/or become incapacitated. It usually covers situations that include crucial decisions such as life support or medical intervention to prolong your life.
Other common legal terms for living Wills include Anticipatory Directions or Advanced Care Directives. However, living wills aren’t very common yet. However, it is important to note that the law regarding living Wills varies in different states in Australia, so legal advice is crucial to ensure that you understand the outcome of your living Will.
Do I need to make a will if I have a Power of Attorney?
Yes. A will and a Power of Attorney are different documents that your lawyer will use for different purposes. The only similarity between the two is that in both cases, you’re appointing one or more individuals to act on your behalf.
In the case of a will, you will appoint an Executor. There can be one or multiple Executors, and they will carry out your wishes after your death. In the case of a Power of Attorney, you will appoint an Attorney or multiple Attorneys to carry out your wishes or make crucial life decisions for you when you are alive. When you die, the position of Power of Attorney is no longer valid, and your Executor will immediately need to take over your will and carry out your wishes accordingly.
Should I use a free will?
Using a free will is generally not the best idea because of a number of reasons. For example, these documents don’t always comply with all State and Territory legislation in Australia or may no longer be legally valid. If there is an issue and it affects the validity of your free will, then the distribution of your assets may not correspond with your initial wishes. There’s also a risk that complications may arise, and it may delay the distribution of your assets and deduct any legal expenses.
Another major issue with free wills is that they require you to nominate the supplier’s company as an Executor. Hence, when you die, they carry out the role of Executor but charge a specific fee and take a percentage of your assets. This can be as much as 5% or more.
What assets should I include in my will?
You should first compile a list of your current assets, which includes
- Physical assets such as jewellery, cars, house, watches
- Financial assets such as bank savings, life insurance policies
- Possessions with sentimental value
Moreover, you should also make a list of your liabilities which include any outstanding mortgages or loans. However, it is important to understand that the usual process of the distribution of your assets will start with the gifts you left for specific recipients. The Executors will then work out the total value of your assets, deducting any liabilities and taxes. The leftover will be your residuary estate, which the Executor will then divide according to your wishes.
Should I include any life insurance policies in my will?
No, you don’t need to specify bequeaths in your life insurance policies. Some superannuation funds will keep the distribution of your assets discrete without any reference to your will. Other superannuation funds will allow you to choose a beneficiary through a binding death benefit nomination. In many cases, the binding death benefit nomination will lapse after three years. Hence, it is important to check with your superannuation fund regarding your individual fund requirements.
Meanwhile, life insurance policies will require you to nominate a beneficiary at the beginning of the procedure. When you die, your life insurance policy benefits will go to your nominated beneficiary without any reference to your will. Hence, it is also important to renew your policy to recheck your beneficiary details.
Can I make changes to my will after I sign it?
Yes, you can change your will whenever you want and as often as you want to. However, the best way to avoid any confusion is to start again with a new document rather than refine your old will. If the changes are minor, such as adding a gift or changing your Executor, then you can use a Codicil to amend it.
A Codicil is a legal document that allows you to make minor changes to an existing will. It is crucial that you attach your Codicils to your
original document and keep them safe. When you make a Codicil, you aren’t making changes on the will directly. Hence, you will need the Codicil as legal evidence of any and all changes you made to the general will.
It is a good rule to not keep more than three Codicils. If you still need to make further changes, we recommend starting over with a completely new will. This will avoid the danger of your Codicils contradicting each other and eliminate any confusion about your intentions. However, it is important to note that once you write a new will, your old expires its validity. Hence, you must always date and witness the new version.
Another important thing to note is that marriage automatically revokes your will. If you made a will before you got married, the marriage would revoke the will unless you made the will mentioning specifically a particular person or marriage. Hence, if you get married, you will likely have to amend your will.
What can make my will invalid?
A number of legal inaccuracies can affect the validity of your will, including but not limited to –
- You didn’t name an Executor in your will
- Your Executor has died or is not willing to act
- The will doesn’t include any witnesses
- Your witnesses are the beneficiaries you mentioned in your will
- You didn’t make it clear if you revoked any previous wills
- There was no update or amendment of the will after your marriage
Make a will with United Legal lawyers today
The whole point of a will is to ensure that the distribution of your assets follows your wishes, even after your death. Moreover, it avoids any unexpected legal taxes or conflicts between family members that may arise in legal battles. Hence, we recommend seeking legal advice from Canberra’s best lawyers. At United Legal, our dedicated team of lawyers will walk you through the legal process, explaining the risks, outcomes, and possible legal associations with your will. We make sure that you make the best decision for your family and yourself, which you can also implement legally after your death.
