It is common for people to put off having their Wills made. Preparing your Will can be a challenging and often daunting task. Despite this, it is important that you have your Wills in place so that your final wishes and best interests are not neglected in the event of your death.
There are several things to consider when you are having your Will prepared:
- Who should I appoint as my Executor(s)?
Your Executor is the person who you are appointing to act on your behalf to administer the terms of your Will. The role of the Executor is, therefore, crucial because they are carrying out your final wishes. The ideal Executor should have the following characteristics:
- Sensible – the Executor doesn’t have to be a lawyer but should be someone who you trust to make the right decisions on your behalf.
- Healthy – the Executor doesn’t have any severe illnesses or suffer from any severe physical or mental impairments.
- Local – the Executor is accessible and doesn’t live too far away from the Will maker.
- Age – the Executor is not much older than you (for example a parent) and therefore likely to die before you.
You can appoint multiple Executor’s, and in some cases, this may be helpful because it means that the burden of administering your estate doesn’t rest solely on one person. However, it is important that your co-Executors get along, and meet the above criteria, to prevent unnecessary conflict in the process of administering your Estate.
2. What to do with your estate
It is completely your decision as to how you distribute your estate. Your beneficiaries can be whoever you want, including your spouse, partner, children, grandchildren, nieces, nephews, cousins, parents, friends etc.
3. Can someone dispute my Will?
It is important to be mindful that certain people may have a legal claim against your estate. Part IV of the Administration and Probate Act 1958 (Vic) outlines the category of people who may be eligible to contest your Will, including (but not limited to):
- A spouse, domestic partner, former spouse;
- Children (may include adopted children, step children)
- Grandchildren
- Members of the household of the deceased
It will depend on the specific circumstances as to whether someone is eligible to make a claim, and whether this claim is likely to be successful.
(https://www.tonkinlaw.com/resources/challenges-to-wills-court-is-not-the-only-way)
4. Can I exclude someone from my Will?
If you have experienced a relationship breakdown with a family member, you may want to exclude this person from your Will. We are able to draft a provision in your Will which expressly excludes this person from receiving any benefit from your Estate. We will then prepare a document known as your ‘Expression of Wishes’ (insert link to Expression of Wishes blog). This is basically a shield to protect your Estate from any person who wishes to challenge your Will. If the person you have excluded from your Will proceeds to make a Part IV claim (insert link to Part IV claims blog), your Expression of Wishes will be used as evidence by your Executor against this claim. Importantly, your Expression of Wishes will not be shown to anyone, including your Executor, if there is no claim made against your Estate.
5. Special bequests
If you have certain cherished items which hold intrinsic or personal value, you should consider expressing these in your Will. This might include things such as jewellery, family heirlooms, motor vehicles, boats, furniture etc. While these items may not be of high financial value, they may be emotionally invaluable for you. It is therefore important to consider who you would like to give these items to. You may also consider leaving a sum of money, known as a bequest, to a particular person, or to an institution such as a medical research centre or the RSPCA.
6. Property ownership
Do you own real estate? If so, do you know how your property is owned, or who is named on the title? These are important considerations when preparing your Will, because they influence whether your real estate forms part of your estate.
7. Guardianship of children
If you have children under the age of 18, it is important to secure the future and wellbeing of them if you are no longer around. When preparing your Will, you are able to appoint a guardian to care for your children during their minority (under 18) if you die (and your partner). It is common for people to appoint parents, siblings, cousins and close friends to act as guardian for their children. Some important considerations when appointing a guardian include:
- Lifestyle
- Age
- Practicality – location, health, financial standing.
- Whether your children are familiar with the guardian.
If you are married or in a defacto relationship and it breaks down, you can nominate someone other than the other parent of your children to be their guardian, but that parent can challenge your appointment under the Family Law Act.
8. Superannuation
Before completing your Will, it is important to consider your Superannuation, which Superannuation fund your super is being held with, whether you have completed a Binding Death Nomination form, or whether you are operating a Self-Managed Superannuation Fund. We advise you to check the
https://www.tonkinlaw.com/resources/self-managed-super-funds-incapacity-part-one; https://www.tonkinlaw.com/resources/self-managed-super-funds-incapacity-part-two
This is general information only. Please contact us for expert legal advice that takes your unique personal situation into account prior to making any decisions based on this article.
