A Will is Your Legacy.
Have you ever considered what will happen when you are gone? Who will attend your funeral and what might they say about you?
Those are things you will never know, but there are some things you can control after your death. These items are outlined in the terms of your Will.
It is important to have a valid and up-to-date Will to ensure that your final wishes are fulfilled. Read on to find out what is included in a Simple Will, and what is involved in producing and maintaining this important document.
Need a to talk to an estate lawyer? Call us on 03 9878 5222 to schedule a free 15 minute phone consultation.
Types of Will
Not all Wills are the same. In fact, there are four types of Will, the most common being a Simple Will. A Testamentary Trust Will, Disability Trust Will and a Living Will are more complicated types which cover special circumstances.
This is the type of will most people are familiar with. Put simply, it is the legal document that states what you want to happen with your assets in the event of your death.
Testamentary Trust Will
This is a complicated type of Will. Instead of leaving the inheritance to a beneficiary in a lump sum, this document creates a Trust and leaves the inheritance to the Trust. The beneficiary has complete control over their Trust and can use its fund any way they seem fit. This type of Will has asset protection and taxation advantages, but because of it’s cost, is generally only recommended to those who are leaving a substantial inheritance to their beneficiaries.
Disability Trust Will
This is a complicated Will that makes special provision for when you want to leave part of your estate to someone who has a disability. By leaving the inheritance to them in this way, you do not affect their pension.
This is a special type of Will which can be made by the Victorian Civil and Administrative Tribunal. It applies in certain circumstances where a person does not have the capacity to produce a Will on their own.
The basics of a Simple Will.
At a basic level, a simple Will outlines what you want to happen to your assets and possessions when you die. In Victoria, a Simple Will must meet the legal requirements outlined in the Wills Act 1997.
The Simple Will allows you to gift certain assets to specific beneficiaries. This could include family members or a nominated charity. The Will also outlines what happens to the Residue. This is the net asset amount after specific gifts have been considered.
A common misconception is that every asset must be listed in the Will. All your bank accounts and super funds are automatically considered as part of your estate, and will be covered in the Residue.
A Will is the necessary document required for Probate. Probate declares that a Will is valid and affirms the authority of of the Executor. The Executor is the nominated person to be in charge of distributing the estate. The Executor will access all the assets in the estate, including bank accounts, shares, bonds, vehicles and property.
There can be other decisions to make when preparing your Will. Who will be guardians of your children? Do you want to donate your organs? What will happen to the family trust? A lawyer can help you navigate through these considerations.
It is important to have a valid and up-to-date Will to ensure that your final wishes are fulfilled.
We also recommend letting your friends and family know about your intentions, so everyone knows what to expect when the time comes.
What happens if I don’t have a Will?
‘Intestacy’ occurs when a person dies without a Will. If you die intestate, the law will prescribe who will receive inheritance, according to rules outlined in the Administration and Probate Act 1958.
The law dictates that you estate pass in a very specific manner, and only to your next of kin. As the law is general, your true intentions when it comes to the distribution of your estate may not be reflected in outcome mandated by legislation.
How do I get a Will?
A Will can be a simple document, as long as it complies with the requirements outlined in the Wills Act 1997. A Will does not need to be executed by a lawyer and DIY ‘Will Packs’ are available.
However, to be confident that your Will is valid it is strongly recommended that you hire a lawyer. This is the best way to ensure that the distribution of your estate will not run into any unintended complications and your nominated beneficiaries receive exactly what you intended.
If you prepare your own Will and it is found to be invalid, this can cause expensive legal issues in the distribution of your estate.
A professionally produced Will avoids more expensive legal complications later down the track.
How often should I update my Will?
When your family goes through a major change, there will be a lot of things on your mind. Marriage, divorce and death in the family are always intensely emotional life events. It is understandable that your Will may be one of the last things you think about.
However, in such events it is important that you make plans to amend this document as soon as possible. Families are dynamic, so your Will should be too. Reviewing your Will after these big family events will ensure that your plans are still relevant to what you want.
Even if there has been no major change in your circumstances, it is always a good idea to regularly review your Will. Our preferences change as we get older. As a general rule, you should review your Will every 5 – 10 years.
Storing Your Will
Your Will is an important document, so it must be kept safe from both theft and natural disasters. The most common places that people store their wills are the following:
- At home. If you keep your Will at home, it should be kept in a fireproof safe. This may not be the most safe option against theft, or others finding out the combination.
- At a bank. Safety deposit boxes are a secure way to store your Will, safe from fire and theft. However there are ongoing fees for this method of storage.
- With your lawyer. At Rose Law, we have dedicated Will storage available for our clients. They are safely and securely stored in a fireproof safe, free of charge.
A Will is your final plan. Make it a good one.
The best thing about a Will is that it you can customise it as much as you wish. Your estate is a lifetime of hard work, so you should be in charge of who can benefit from it.
If you do not want to leave inheritance to certain family members, or not in equal parts, that is your decision. It is recommended that an appropriate clause is included in the Will to reduce the likelihood of a person contesting your decision.
Getting a lawyer to produce your Will is the best way to ensure that things go according to plan after your death.
Make sure things go to plan. Call 03 9878 5222 and ask us about a free phone consultation.
Julie is an admitted Solicitor in the Supreme Court of Victoria. She has a range of experience in Civil Litigation, Commercial Law, Family Law, Taxation...
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