Hows Your Will?

Last will and testamentI’m sorry to have to remind you of this fact, but, like it or not, you are going to die! So, if you haven’t already decided what will happen to your stuff when you go,  you should make a will today. And even if you have an old will you should review it, otherwise when you die things will happen that you have no control over and no say in! This applies especially if you have married or divorced, or just split up, or your children’s situation has changed, there will be changes that need to be addressed in your existing will.

With that in mind, I asked a legal friend of mine, who worked in a community legal office for years, about what we should do about our will and this was his reply…

Where There Is A Will

You have made a legal document which probably-

Appoints an executor (the person who will look after your estate when you die)

Names your beneficiaries (who gets what)

Appoints a guardian of any children under 18 years.

It may also establish a trust and set out gifts to charities

Why Have a Will??

If you don’t have a will your assets will be distributed according to a government formula – and not necessarily to whom you would want to give your assets.   Your estate could go to a spouse, partner, children, grand-children, parents, brothers & sisters, nieces and nephews, grand-parents, uncles and aunts and cousins and then, if none of these – the government may get it!!!!!!!!

So Why Don’t You Make a Will??

You decide who gets what-and equally as important – who doesn’t get your hard-earned assets! Do you really want your former spouse from whom you have been separated for years to get your stuff?  What about that drug-addicted child or grand-child? Or that sister who hates you?

Who Should Have a Will?

Anyone Over 18 should have a will because, even if you have few assets today, many superannuation funds have very significant life Insurance policies attached to them, so on your death there may be quite a lot of money paid out. Superannuation companies often pay out according to a nominated beneficiary so you should also ensure that your company has your nomination – and it should be reviewed from time to time.

A Will Is Normally Revoked (Cancelled) When You Marry

A will is not automatically revoked if you divorce, but any provision in favour of your ex-spouse is ineffective and they cannot be the executor so divorce will make significant changes.

Review Your Will Regularly & Particularly When…

Anyone named in it dies or is diagnosed with dementia or similar

– especially your executor or a guardian or beneficiary

You start a new relationship

You have another child or grand-child

Your financial circumstances change e.g. you win lotto or retire with significant super or payout.

You are diagnosed with a serious or terminal illness.

You end a marriage – even before divorce but certainly after or

You end a de facto relationship.

You find that a potential beneficiary is addicted to drugs (do you really want to keep their pusher wealthy and speed the death of a loved one?)

Who Should Be The Executor??

Preferably your spouse or a friend who can be trusted to carry out the very important task of administering your estate in accordance with your wishes – remember that friends come and go over time and may suffer a serious illness including dementia. Family members may be OK, particularly if they are benefitting equally – but it may start WORLD WAR III if money is involved! How well do they get along? Many families have permanently split over the administration of estates.

So Who????

A sensible trustworthy person – for example a friend or relation. The Public Trustee by whatever name in your State (who will charge for their services based on a percentage of the value of the estate) but normally will make a will for free.

In any case…..if you are unsure, speak to a solicitor, or the public trustee, or some community legal centres for advice.

BE VERY CAREFUL USING “DO-IT-YOURSELF WILL KITS” – UNLESS THEY ARE DONE PROPERLY THEY MAY BE MORE THAN USELESS – YOU THINK YOU HAVE A VALID WILL BUT YOU MAY NOT!

Your will does not take effect until you die. A Power of Attorney should be considered to take effect if you become seriously ill or disabled or incapable of managing your affairs during your lifetime.

The information above is very general and should not be absolutely depended on in any particular case. Each State has its own law covering wills and estates – IF IN DOUBT – PLEASE CHECK!

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