The Importance of a Will
Do you have a will, and is it still relevant?
Even if your estate matters are simple, having a properly drafted will and reviewing it regularly is going to save your family from expensive legal processes.
But I don’t need a will
Yes, you probably do.
In my practice I often hear my clients say they don’t need a last will and testament. Sometimes, it’s because they’re confident their husband or wife will just get everything when they die. sometimes because they’re confident their children all get along well, and there’ll be no arguments about what happens.
But that’s not how the law works.
My clients are often very surprised when I tell them that, if they die without a will, their spouse may end up having to sell their home. At the very least, their partner or their children (or whoever inherits their estate) will probably need to engage a solicitor to assist them, and that cost will probably ten times the cost of getting a will done.
If you do not have a will, or your will is found not to have been drafted or executed properly, then there are complex legal rules about what will happen to your property after your death. It may not automatically be passed on to your children, or to your spouse. Banks will probably freeze your accounts, and force your family to apply for Court orders (called “Letters of Administration”) before releasing the funds to your loved ones.
In Queensland, your last will and testament must meet certain legal requirements including clearly identifying an executor, all the relevant beneficiaries, and accounting for all of your assets and liabilities. Wills also need to be signed a certain way, and your signature must be properly witnessed by two people who must also be properly identified in the will, and have no interest in your estate.
Many over-the-counter 'will kits' do not meet all the necessary legal requirements , or (if filled out without proper legal advice) may end up disbursing your estate entirely differently from what you had intended.
Many law firms also offer cheap wills, but often this is because you are getting a ‘template’ will drafted by someone without the proper training or expertise. Sometimes, this can be worse than having no will at all. In the worst case I have had personal experience with, a “cheap wills” law firm gave their client a poorly rafted will (which probably only cost about $250), but after that person died her estate and her family had to spend well over $65,000 to sort out the mess, and to ensure her children could continue to live in the family home.
When it comes to wills, you really do get what you pay for.
What needs to be covered by a will?
A document will only become your final will and testament if you execute it in the presence of two capable witnesses who must also sign the will in your presence and in the presence of each other. There are complex requirements if you are unable to sign your name, or are visually impaired. You should obtain legal advice before making your will.
A will should clearly state that it is your last will and testament, and (unless it is a codicil) should clearly state that it supersedes any and all previous wills.
Your will should appoint at least one executor. The executor will be responsible for securing our assets after your death, paying out of the estate any debts you may have, and distributing your estate according to your will.
Your will should also clearly dictate what happens to your estate. While you can leave part or all of your estate to your executor, it is not enough to simply direct that your executor gives away your assets at their sole discretion.
If you destroy, give away, sell, or otherwise dispose of something that is specifically gifted in your will, then the gift in your will is void For example, if your home is sold to raise sufficient funds for an accommodation bond in a nursing home, or to purchase a different home, any specific gift of your former home in your will is likely to have no effect.
When drafting a will, your lawyer should discuss your family arrangements carefully with you, to identify any potential problems that could lead to complications with your estate after you die. Understanding and addressing these potential difficulties is the difference between a good will and a cheap will.
What happens to our home?
No matter what is written in your will, your title and interest in any property that you jointly own with another person will automatically transfer to the other joint owners. For example, if you and your spouse have bought a house, land, or an apartment together, it may automatically transfer to your spouse upon your death if you own it as joint tenants, and nothing in your will can change that. The same rules apply if you have a joint bank account, or a motor vehicle registered in joint names.
If you have any questions about jointly owned property,, joint tenancies, or how to sever a joint tenancy, you should get legal advice as soon as possible.
What happens to my superannuation?
If you have a superannuation interest, that interest and any benefit payable upon your death may be paid in a way that is contrary to the instructions in your will. Usually, your interest in any superannuation fund are distributed in accordance with the rules of your fund.
Many funds allow you to appoint a “binding death benefit nominee”, however even if you have appointed a nominee the trustee of your superannuation fund may still have a discretion to determine who receives your superannuation death benefit.
Check with your fund if you are able to appoint the executor of your estate as the nominee, which may then allow your superannuation to be dealt with under your will. It is likely that you can direct your superannuation fund to pay the benefit to your executors, to then be disbursed as per your will, by nominating your “legal personal representative” (i.e. your executor) as your binding death benefit nominee.
We encourage our clients to contact their superannuation funds and appoint a binding death benefit nominee.
So I’ve made a will, what next?
Once your will is made, you should keep your executed will in a safe place but where it can be easily found after your death. You should also inform your executor of its whereabouts, or give a photocopy of the will to your executor.
If your will is last known to be in your possession, but the original cannot be found after your death, the law will presume that you have chosen to revoke your will by destroying it. Once you have executed your will, it is therefore recommended that you
Alternatively, solicitors can keep your will in safe custody for you.
