Reasons you need a Will (and an Estate Plan)
Most people know they should have a Will, but many put it off thinking it’s something to deal with later in life.
The reality is that having a Will is one of the simplest and most important ways you can protect your family, your assets and your legacy.
Here are our top reasons everyone over 18 should have a validly drafted Will and an up-to-date Estate Plan:
- You decide who receives and deals with your assets.
In Australia, a person who dies without a valid Will is considered to have died ‘intestate,’ and your assets will be distributed according to the terms of the Succession Act 1981 (Qld), which may not be in accordance with your wishes.
Additionally, your family would have to apply to the Supreme Court to obtain a grant of Letters of Administration, which is an added complexity and potential cost to your family members.
Having a Will lets you choose who you want to receive your assets, and who you want managing your estate, including dealing with personal information, digital assets and financial information. This person is known as your Executor and is crucial to your estate’s administration.
- Protecting your loved ones + pets
If you have minor children, or a child/children with special needs, you can specify in your Will at what age they receive their share of the estate. You can also set up a trust within your Will, and appoint someone to manage the funds long term for your child’s benefit (this is known as a Testamentary Trust Will).
A Will also allows you to appoint a guardian for your minor children in your Will, who will look after them until they turn 18.
While pets are treated as property by law, for many of us they are part of our family. Anyone with pets should consider leaving pets to someone they trust in their Will along with directions for their care if something happened to you.
- Cost effectiveness
Some common issues that arise when someone does not leave a Will, or leaves an invalid Will (such a text message or note that has not been drafted in accordance with the Succession Act):-
- Disputes about who gets what. For example, a family member may feel entitled to a portion of the estate even if this was contrary to the deceased’s wishes;
- Having to seek legal advice on whether an improperly drafted Will can be admitted into probate, which may or may not involve Court applications;
- Your family having to apply to the Supreme Court for a grant of Letters of Administration where there is no Will.
The above could result in delays and additional legal costs that perhaps your family had not planned for, which could be significant depending on the matter.
- Dealing with Non-Estate Assets
Surprisingly, there are a few assets that cannot be gifted through your Will (known as ‘non-estate assets’). These include:-
- Accounts owned with someone else in joint names;
- Property owned with someone else as Joint Tenants;
- Superannuation;
- Life insurance;
- Reversionary pensions;
- Assets in companies;
- Assets in trusts.
At Croy Legal, we consider your Will in the context of your broader estate plan. During your initial consult with us, we will go through your assets and liabilities together and determine the best strategy for your wishes to be carried out.
- Preparing in the event you lose capacity
Losing capacity means that you are still alive, but are no longer of sound mind or able to make decisions for yourself (for example, because of an accident or health condition).
As your Will only comes into effect when you die, the document that sets out who can make decision for you is an Enduring Power of Attorney.
The Enduring Power of Attorney allows a person (or persons) you nominate to make financial and personal/health decisions. These include paying your bills, operating your bank accounts and deciding where you live.
At Croy Legal, we encourage you to consider doing an Enduring Power of Attorney that is kept together with your Will.
If you would like assistance with preparing or updating your Will, or not sure where to start, call our office today on 1300 123 876.
We provide free consultations and would be happy to schedule an appointment.
To prepare for your consult, we provide our Estate Planning Kit HERE. Complete the document and bring this along to your meeting with us.
By Shanelle Kennedy
Solicitor