What is a Will?
A Will is a legal document which deals with your assets and liabilities upon your death.
It is a document which allows you to distribute your assets to your family in the way you wish them to be distributed.
Assets not only include property such as your home, car, money in the bank, shares but it also includes personal items such as jewellery, furniture, art work. Life Insurance policies and Superannuation also form part of your assets.
It is important to have a Will regardless of whether or not you have family and/or dependants.
When making a Will it is necessary to appoint an Executor who becomes the Legal Representative of the Estate upon your death. The function of an Executor is to ensure that the wishes of the Testator (the person making the Will) are carried out as outlined in their Will.
You may elect to appoint more than one Executor. So for example, you may appoint your spouse first and if they are unable or unwilling to act you may appoint your children.
What is an Enduring Power of Attorney?
An Enduring Power of Attorney allows you to appoint someone, for example your spouse and/or your children, to deal with your financial affairs on your behalf in the event you are unable or incapable of doing so your self through illness, disability, loss of mental capacity etc.
Attorneys may be appointed to act individually or jointly. So for example you might appoint your spouse to act individually and if they are unable or unwilling to act on your behalf you may then appoint your children who could act either jointly (together) or severally (individually).
What is an Enduring Guardianship document?
An Enduring Guardianship document allows the appointed Attorney(s) to deal with non-financial issues such as health and medical treatment; lifestyle decisions such as whether or not the appointor may need to be placed into a nursing home, etc.
Without an Enduring Guardianship it is possible an Attorney may be appointed by the State to make such decisions on your behalf and clearly in light of the nature of the decisions to be made, it would be far better for that person to be someone known to you who would respect your wishes in certain circumstances.
What happens if I don’t make a Will?
If you don’t make a Will the process of distributing your estate becomes much more complicated, time consuming and expenses.
The Law provides a formula which sets out who is entitled to the property of a deceased person who dies without making a Will and therefore you cannot be assured that your assets will be distributed in the way you intended or wished form them to be.
Another reason to make is a Will is if you marry as marriage revokes an existing Will unless it was made in light of the intended marriage.
However divorce does not revoke a Will and therefore if you have been divorced or re-married it would be wise to make a new Will.
How can a Solicitor help me make a Will?
A Solicitor will ensure that your Will is:
- Validly drafted, signed and witnessed;
- Ensure that your wishes are expressed clearly;
- Kept in a safe place
A Solicitor will also advise you in relation to:
- Tax planning;
- Choosing an executor;
- The best and most beneficial way for you to arrange your affairs
Where should I keep my Will?
Your Will, Power of Attorney and/or Enduring Guardianship documents should be kept in a safe place. If these documents are mislaid, it may be assumed that they never existed or that your Will may have been revoked. Therefore it is recommended that these documents be kept with either your Solicitor or in a safe custody box at your bank. A Solicitor will generally hold these documents on your behalf free of charge whilst a bank may charge an annual fee.
It is advisable that a copy of each document is kept by you noting the whereabouts of the originals and also that you advised your appointed Executors as to the location of the original documents providing them with details of who they should contact in the event of your death.