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What is a Will and Why Do You Need One?

By 09/18/2019 Wills & Estates
What is a Will
A will is one of the most important and practical legal documents you will create in your lifetime. By making a will, you ensure a number of things will happen once you pass on – specifically, that your property and assets will be distributed after your death in the way that you want them to be, and also to provide certainty and clarity for your loved ones in terms of their inheritance from you.

When should you make a will?

When you’re young it’s easy to put off the idea of making a will. You don’t have dependents, you don’t have many assets and you may not yet have a partner. But as you get older you will likely gain some or all of these things and it becomes essential to detail what should happen to the things you leave behind in the event of your death. In truth, it’s advisable for anyone over the age of 18 to consider making a will, particularly once they start working. This area is commonly referred to as ‘estate planning’.

Once you’ve made a will, it’s recommended you review it every five years to ensure it accurately reflects your current circumstances.

What are the consequences of not making a will?

Should you die without having made a valid will, you are said to have died ‘intestate’ and your estate will then be subject to the laws of intestacy such as Queensland’s Succession Act 1981. This can mean your estate is not distributed as you had intended – even your sentimental belongings may not go to the loved ones who you wished to inherit them.

The lack of a will can lead to a messy and potentially costly situation for your family if they then wish to seek to assert their rights in relation to your estate.

Things to consider in making a will

As the maker of a will you are known as the ‘testator’. You must also appoint an ‘executor’, a person or persons who will be responsible for managing and distributing your estate when you die, and therefore someone in whom you have implicit trust. This is because the executor/s role is an important one which can be both time consuming and complex, given they possess unique powers to deal with your estate.

In assessing the ‘estate’ you detail in your will, it’s important to remember that it is the sum of your assets minus your liabilities. Assets might include real estate holdings, cars, shares, super, life insurance and any money owed to you, while liabilities might include things such as outstanding tax debts, mortgage debts, household and medical bills.

It’s not always clear, at the time of your death, what will constitute either an asset or a liability and this is where a legal professional with experience in estate planning can assist at the time you make a will.

The importance of advice

While there are many DIY kits available which aim to defray the costs of making a will, people who use such means should be aware that legislation relating to wills in each state contains specific provisions governing the process.

In making their own wills, people often make fundamental mistakes such as:

  1. Not detailing the full name and relationship to a person mentioned in the Will, i.e. a father and son might have the same name, or a person might inherit a surname after marriage;
  2. signatures in different coloured inks which indicate testator and witnesses were not present together at the signing;
  3. making later amendments to the will after it has been signed, which can render it invalid; and
  4. even storing the will incorrectly, so that it’s obvious paperclips or staples have been removed to add or remove pages.

Even these basic examples indicate the importance of consulting an estate planning expert when it comes time to either make or update a will. Contact us today on 07 5562 0444 or email info@lrlaw.com.au to discuss creating this important life document.