Why have a Will?
Your will is an important document in your estate plan. It gives legally binding directions on who will control your assets, how you want the assets and income managed and gifted guardianship of minor children
Even if you have a will, it may not be valid. Unless there is an earlier will that is valid, you may be treated as having no will. An application to Court may ‘fix’ a will sometimes, but is expensive.
A will may be invalid if:
– it is not signed and witnessed correctly. This often happens with ‘do-it-yourself’ will kits and other wills signed without a lawyer present
– you married after signing a will (unless it considers your spouse)
– it is proven you signed under duress or in poor mental health
If without a will, your assets do not go to the government (a myth). However, a government set formula determines which relatives get what. The result may not be what you want!
For example, if the family home is in the name of one parent, who dies without a valid will, the home does not pass fully to the other parent. The surviving parent gets value equal to the first $100,000 and one-third of the balance. The child(ren) get two-thirds of the balance. If the children want the cash, they can force a sale of the family home – a terrible outcome.
A will is also needed if:
– you want to leave assets to a de facto who might have to fight relatives in court to prove your relationship.
– any of your children have financial problems or marital problems. Otherwise your assets may go to their creditors and ex-spouses
– your spouse has high financial risk (e.g. personal guarantees, business directorships). Assets held by the low risk spouse should not pass to the high risk spouse. Similarly, if you have high financial risk, persons that may leave you an inheritance (e.g. parents) should instead leave your inheritance to a trust.
If you die whilst separated, but not divorced, your spouse could receive more than from a family law division. You should take quick action with a new will and take steps to prevent your half share in property passing to your spouse automatically on your death.
What kinds of Wills are there?
There are two types of wills:
1. a simple will – assets are gifted to specific people in your will
2. a ‘testamentary trust’ will – all or most assets are not specifically gifted, but go into one or more trusts. Decisions to distribute income and capital are left with your executors.
The main advantages of a testamentary trust will are:
– assets protected from creditors of your spouse or children
– potential protection from your children’s ex-spouses
– potential tax savings on flexible income/capital distributions
The right will depends on your financial and familial circumstances.
Who should you have as Executors?
Without a will, you do not choose your executors. The closest family members usually apply for this, but there can be a costly fight in court over who is appointed. This happens often between a second spouse and children of an earlier marriage.
Who is right depends on your circumstances. We usually recommend independent persons over children, especially for larger estates. This should prevent children fighting each other and gives them greater protection from ex-spouses. The independent persons should be at least two people you know and trust (e.g. long-time accountant and lawyer).
There are many choices to be made with your will. A good estate planning lawyer will explain the benefits and risks to determine which suits you.
If you have any questions or require further information please contact Harry Giannakidis on hgiannakidis@millsoakley.com.au