We at AH2 Legal always get asked by the general public as to why they need a Will and how lawyers can help them with a Will. Over the next three articles, we will be starting a three part series to discuss issues relating to Wills and what happens to a deceased’s assets when they die.
As part of our three part series, we thought it would be helpful to start off this week by providing you with answers to the TOP 10 questions we frequently get asked concerning Wills.
Without further ado, here are the top 10 questions concerning Wills and our answers to them:
1. What is a Will and why make one?
A Will is a legal document that directs what happens to your assets after you die. Your Will should outline how you want your assets (the things you own) to be distributed after you die.
There are technical requirements for the document to be recognised by the Court as a valid Will. A Will must be in writing, witnessed by two independent witnesses, and the Will maker must be of sound mind when they make and sign it.
The most important reason for making your Will is to make sure that after your death, your property is distributed in the way you would have wished it to be. Another important reason for making your Will is to appoint your “executor” who is the person named in your Will to make sure that all of your requests are carried out.
Some assets may not be able to be dealt with by your Will, such as assets you hold with other people, superannuation, interests in family companies or trusts. We at AH2 Legal can help you put in place a Will and a plan to deal with these other assets & interests.
2. What are the basic requirements to make a valid Will?
To make a valid Will, the Will maker must be at least 18 years old and be of sound mind. They must be acting of their own free will, not under undue influence (pressured by a more powerful person) or duress (persuaded by threats or violence) from others.
The Will itself should preferably be typed although handwritten Wills are acceptable. You must have appointed someone to carry out your wishes on your behalf (your executor) and state how you want your property to be distributed after you die.
3. How do I make a Will?
The best way to make a Will is to instruct a lawyer who is experienced in preparing Wills.
4. How much does it cost?
The cost of the Will really depends on how simple or complicated you or your circumstances require it to be. Some people only require or want a simple Will. Some people need more than a simple Will to deal with family trusts, companies or superannuation.
If you have various properties and hold interests in significant assets, then you might decide to have complex Testamentary Trusts to deal with a wide range of property matters. A properly drafted Testamentary Trust may reduce the tax payable by the beneficiaries in the future. It all depends on your individual circumstances and your personal wishes.
Speak to one of our friendly lawyers at AH2 Legal at the start of your appointment if you are unsure as to what you require, or the costs involved. At AH2 Legal, we can prepare a simple Will from prices starting at $400 plus GST.
5. Why not just leave it to the family to sort out after I’ve died?
If you die without a Will, you have died “intestate” and your estate Will be divided according to the rules of intestacy in pursuant to the Administration Act 1903 (WA).
Where a person dies intestate, not only does the law determine who gets the estate, but a procedure has to be followed to obtain Letters of Administration from the Supreme Court Probate Registry. This is more complicated and expensive than an ordinary application for probate (Court approval) of a valid Will.
6. Why not use a “Do It Yourself Will Kit” from the Post Office or use the Public Trustee offering “free” Wills?
A “Will kit” from the Post Office or Newsagency assumes your circumstances are simple and this is not true for many people. For example, many people have second marriages and children from different relationships.
If the technical requirements for completion of the Will are not correctly followed, a Court application Will be required and this is likely to cost thousands of dollars.
Any mistakes you make Will not become apparent until after you are dead, and the cost of fixing them (if the mistakes can be fixed), will be much higher than getting it right in the first place. A lawyer’s advice when preparing your Will can also reduce the risk of inheritance disputes which are very costly.
The Public Trustee Will prepare a Will on the basis that Public Trustee is the executor and controls the procedure of applying for probate and dealing with estate assets. The Public Trustee generally charges a percentage of the value of the estate assets in addition to Court fees and any legal costs. Typically, this will involve several thousand dollars of commission paid out of your estate. This would not be paid if a lawyer prepared a Will that appointed one of your relatives or friends as your executor.
7. What happens to my superannuation?
For many people superannuation will be one of their most valuable assets. The interaction between superannuation and Wills is complex, and superannuation does not automatically become an asset of your estate on death.
You should seek legal advice about who is likely to benefit from superannuation on your death, and the possibility of having a binding death nomination to make certain it passes to the person you want.
8. When should I make a Will?
Every person over the age of 18 years (who is of sound mind) should have a Will prepared. It is surprising how quickly many young people build up valuable assets after leaving school – a car, superannuation, bank savings, or a home. Traffic accidents and fatal illnesses are unpredictable. Even a simple Will saves much expense and family stress in the event of a sudden death.
9. When should I review my Will?
Changes in personal or financial circumstances mean you should seek advice when preparing or reviewing a Will.
These circumstances include:
- marriage – which makes an earlier Will invalid. Your Will is automatically revoked, or made invalid, when you get married and on the day you are formally divorced by a Court;
- the birth of a child;
- buying a house;
- divorce, or separation from a de facto partner; or
10. Where should I keep my Will?
Your Will must be kept in a safe place such as in your safety deposit box in the bank or in your lawyer’s safe. You should tell your executor where your Will is kept.
Having further questions about making your Will? Need legal advice for your Will?
Feel free to talk to us now at ☎️(08) 6161 0243 or 📧 firstname.lastname@example.org for any inquiries.