Will and Estate Planning
Will and Estate planning can be complex. A question we get asked quite frequently is, why can’t I draft my will myself?
There are heaps of DIY will kits out there that you can download for free from the internet, or buy for a few dollars.
So why on earth would you need a lawyer to draft a will?
The reason is that wills are surprisingly tricky, and having a lawyer draft your will can save you from some potentially devastating traps.
Making sure your will is valid
Family members who feel hard-done-by will try anything to challenge a will.
One common attack is that they will say that their deceased family member didn’t have what is called “Testamentary capacity.”
They will say that the deceased was suffering from some condition that impaired their thinking, like dementia, psychosis, or even alcoholism. Having a lawyer can save you from this.
It all comes from an old English case called Banks v Goodfellow, which has been refined and reinterpreted ever since.
Basically, the will-maker needs to be able to understand what they are doing when they make a will.
They need to understand who might be expecting to get something, and they need to understand roughly what assets they own in the first place.
A good wills and estates lawyer, like United Legal, will know exactly what questions to ask you or your beloved family member to make sure there are no problems with this.
We will take detailed notes. If anyone challenges the will in court, we will usually be able to stand up and give evidence, and explain how we made sure that the will-maker was able to think things through properly.
Sometimes we might need to send you to a doctor and get a report; we have the expertise to know when that is necessary, and what questions to ask a doctor.
Making sure your will actually does what you want it to do
Another common issue with DIY wills is with sloppy drafting.
For example, what happens if you decide to leave your house to one of your children, but then you sell your house and forget to update your will?
That is a really common trap. If the will is drafted by an amateur, your child might end up empty-handed.
This is called “Ademption.”
Basically, if you try to give away something you do not own, then the recipient gets nothing.
Our clever drafting and expertise can save you from that.
What happens if you want to make a gift to a charity, but the charity closes down or merges with another charity before the will-maker’s death?
This is called “Lapse.”
We can make sure that no matter what happens, the gift gets used for the good purposes that the will-maker intends.
No matter what you want to happen to your property when you are gone. There are little traps that professionals like us know to look out for, and we can avoid.
“Lapse” also occurs when someone named in the will as a beneficiary predeceases the testator.
Often, people assume that if they leave something to a friend, and the friend dies before them, the gift should end up with the friend’s family.
However, that is actually not how it works, unless you very carefully specify that you want it to work that way.
We can make sure that the way the will is interpreted is actually in line with what you want.
What if you want to make a slightly more complex arrangement?
Life is complicated, so are families and friendships.
A clever lawyer can come up with arrangements that are a little more detailed than a simple gift, if your circumstances demand it.
For example, maybe you have a young, troubled, or irresponsible family member, and you want to make sure that they are looked after.
But you don’t want to give them one big gift which they might squander.
We can set up what is called a “Testamentary trust.”
Which will help make sure that you can look after your loved ones, even when you are gone.
No DIY will kit can do that.
It requires an expert to actually sit down with you, talk through your circumstances. The legal expert will discuss all the legal options that might suit your unique circumstances.
If you think that the distribution of your estate, or of the estate of your loved ones is worth caring about.
Then it is worthwhile to have a lawyer draft your will.
You will probably be surprised by how little it costs, and how quick and easy it is;
We can do most wills with one or two short meetings.
We will be able to quote you an all-inclusive, flat fee in the first meeting.
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