A will is a statement of your wishes as to how you want your personal assets (property) distributed after your death. If you do not have a will then upon your death you are said to have died intestate and your assets are distributed according to the ‘rules of intestacy’. This means your assets will usually go to your immediate family. If there is no family then your assets will go to the state (the government).
Persons who receive a benefit (bequest) under your will are called a beneficiary. You can leave your property to whoever you like, subject to rules relating to making adequate provisions for ‘family’. Your property / assets are referred to as your ‘estate’
It is important that individuals have a properly constructed written will so as to avoid disputes after your death. Even though you can make your own will without legal advice we suggest that it is in your best interests to discuss your wishes with a legal practitioner.
There are some important things to remember when considering the distribution of your property after death. Some of these are:
- You must have the capacity to make a will. That is, you must be of sound mind so that you understand what you are signing. If a person is suffering dementia it may be that they do not have capacity to understand what is in the will. If in doubt a medical assessment may be necessary.
- A will must, usually, be written, signed and witnessed. There are some instances where an ‘informal’ will may be accepted by the court, but this would have to be decided by the court.
- Immediate family members (wife/husband, children, sometimes grand-children, de facto partners, step-children and illegitimate children), may have entitlements to a share of your estate. It is usually not advisable to leave immediate family members out of a will.
- The provisions in a may be challenged in court by any person who claims an entitlement as a beneficiary if they feel that have been wrongly left out of a will or have received insufficient benefit. Such disputes are costly and for small estates may result in legal costs which significantly reduce the value of the estate. The court will require the disputing parties to mediate before any court hearing. If a person disputes a will and loses the case the court will sometimes order that the unsuccessful claimant pay all of the legal costs of the claim.
- Some of your assets may not form part of your estate. If you have a joint bank account the ownership of the money in the account will automatically pass to the other joint account holder(s) upon your death. The same applies to property held as a joint tenancy. Superannuation and life insurance accounts do not form part of your estate as they are distributed by the superannuation / insurance trustees according to your ‘death benefit’ nomination or according to the rules of the particular trustee account.
- When you make a will you appoint an executor (the person who has the responsibility carry out your wishes to distribute your estate). You should ensure that your executor is agreeable and competent to carry out their duties. An executor may seek legal assistance in administering your estate.
- It is important that the executor (and/or other persons) know how to locate your will and other important documents (bank accounts, certificates of title to property, share portfolios, overseas property etc)
- The NSW Public Trustee will make a will for you at ‘no cost’. However, it will become the executor of your estate and will charge a fee based on a percentage of the value of your estate to administer and distribute your estate after your death.
- You may state in your will what you wish in terms of your funeral arrangements (burial, cremation, cemetery, type of service, funeral service provider etc) but your executor is under no obligation to observe your wishes.
It is desirable to seek legal advice when making your will. Ring our office for an appointment.