What is a Will?

“Before anything else is done fifty cents [is to] be paid to my son-in-law to enable him to buy for himself a good stout rope with which to hang himself.” – author Garvey B. White, 1908

This article discusses reasons for making a Will in New South Wales. 

A “last will and testament” is a revocable legal document containing instructions as to the disposition of your property (your estate) intended to take effect on death.

Preparing a Will is one of the most important things you can do for yourself and your family. It provides legal protection to your spouse, children and assets, and ensures that your estate is handled according to your wishes after you have passed on.

A valid will is a binding document that voices your desires when you are no longer around to speak for yourself. By spelling out exactly how you would like your estate handled in the event of your death, a will gives you and your loved ones peace of mind.

Nine Reasons to Have a Will

While each person’s situation varies, here are nine reasons to have a Will.

1. Decide how your Estate is to be distributed

A person who makes a will is known as a testator. A person who dies without having made a valid Will is said to have died “intestate.” If you die intestate, your estate is distributed according to a formula set out in the Succession Act 2006 (NSW). There is no guarantee that the result of applying this law will be in accord with your wishes. The easiest way to avoid this problem is by drafting a Will.

2. Decide who will administer your Estate

Executors make sure all your affairs are in order, including paying off bills, canceling your credit cards, canceling memberships and notifying the bank and other business establishments. Executors play the most important role in the administration of your estate, so appoint someone who is organized, honest and trust worthy. Sometimes the best person to be named executor of your estate may not be a family member so you should make sure you consider all options.

If your Will does not appoint an executor, a court will appoint a legal personal representative for you. This person is responsible for things like paying your debts, cancelling your credit cards, closing your bank accounts, and distributing your estate.

This is a position of great trust. A Will allows you to appoint someone you know to be responsible and competent. Many people select a family member to be their executor. However, this is not mandatory and if you anticipate family disputes it may not be an ideal option.

3. Decide who will take care of your minor children

Having a Will allows you to appoint the person you want to raise your minor children and to ensure it is not someone you do not want to raise them in the event of your death. You can appoint a guardian and even include a “memorandum of wishes” document that details exactly how you would like them to be raised including education, religion, sporting activities and social activities. If you do not appoint a guardian in your Will or you do not have a Will, and the child’s other parent is not living or is unavailable, a court will choose among family members or a state-appointed guardian. You know your child best and you are better placed than a court to choose their guardian.

4. Make Gifts and Donations

The ability to donate to charity in a Will allows your legacy to live on and reflect your personal values and interests.

5. Facilitate the Probate Process

Probate is the legal process the executor of a will goes through to ensure it is valid. All estates must go through a probate process, regardless of whether or not you have a Will. A clearly drafted will can minimize the delay.

Probate courts administer your estate, and if you die without a Will (dying “intestate”), the court will decide how to divide your estate without your input. This can cause unnecessary delays and risks your estate being distributed in a way that is contrary to what you would like.

How lengthy or expensive probate is depends greatly on the size and value of your estate. However, having a Will significantly speeds up the probate process and informs the court how you would like your estate divided.

6. Disinherit people you do not want to receive your property

A Will provides an opportunity to specifically include people (beneficiaries) who intestacy laws would otherwise leave out. It also allows you to disinherit heirs who would otherwise be included.

You may wish to disinherit a person who may otherwise stand to inherit your estate if you die without a Will. If you die intestate, the court will distribute your estate according to intestacy laws. These laws create a hierarchy of inheritance among your surviving relatives (your heirs) which may not reflect the current state of affairs between you and your family members.

If you die without a Will, part or all of your estate may pass to someone you did not intend. For example, an ex-spouse with whom who had a bitter separation, or your spouse’s new partner if they remarry. If your child inherits your entire estate and their marriage breaks down, your estate will have formed part of the matrimonial assets. Therefore if your child divorces, their ex-spouse may take half of their inheritance.

Ensure that your instructions are clear and unmistakable to help silence family disputes before they develop.

7. Avoid Legal Challenges

A well-drafted Will reduces the risk of legal challenges. For example, if a disgruntled family member challenges the distribution because they believe they deserve a larger share of your estate, including a clause in your Will in anticipation of a challenge can quickly resolve the dispute

8. Change your will at any time

One of the best reasons to do a Will is that it is a revocable instrument that you can change as your life circumstances change while you still have capacity. Your most recent valid will is normally the most authoritative. Life changes, such as the birth of a new child, the death of a relative, and divorce, can create situations where changing your Will is necessary.

9. Tomorrow Is not promised

A will is an important document that acts as the foundation of your estate plan. Procrastination and the unwillingness to accept death as part of life are common reasons for not having a will. Sometimes the realization that Wills are necessary comes too late – such as when an unexpected death or disability occurs. Once you pass away, the opportunity to make a will is gone. The result is often a great deal of stress for your surviving family members in a very emotional time. To avoid the added pressure on your family during an already emotional time, make an appointment to get your Will organized.

Next Step: Draft Your Will

This article covers just some of the reasons to draft a will. Contact us soon to begin the process.