The Importance of Making a Will

Making a Will provides you with peace of mind, knowing that you have taken steps to ensure your affairs are in order before it is too late.  Having a legal Will makes the process of dealing with your Estate easier, in what is already a very difficult time for your loved ones.

What is a Will?

Briefly, a Will is a legal document that allows you to state what you want to happen with your assets (and care of minor children if applicable) after you die.  A Will names your executor, who is the person or people (if you choose more than one) that you want to be responsible for looking after your affairs.   A Will also names your beneficiaries, who are the people you have chosen to share in the assets of your estate. 

Why do I need a Will?

If you die without a Will, you are said to have died “intestate”.  If you die intestate the law determines how your assets will be distributed and this may not necessarily reflect your wishes at all.  If, for example, there are close relatives that you have little or no contact with, then they may receive a share of your estate.  Alternatively, if there are no close relatives then your Estate may pass to the government.  There may also be tax implications.

Even if the formula in the legislation results in your assets being distributed as you would have chosen, the process of finalising your estate will be much more costly and time consuming than if you had a Will.  A Will can also account for the special circumstances of one or more of your beneficiaries who may have particular needs or vulnerabilities due to their age, health, dire financial or marital circumstances. 

You can avoid all this extra expense and worry to your family simply by ensuring you make a legal Will.

What should I bring to my initial appointment at Gordon Garling Moffitt

When you have made the decision to make a Will, the first step is to contact either our Young office or our Grenfell office to make an appointment.  You can find our contact details by clicking here.

Before attending your appointment with us, it would be useful for you to consider the following:

  • Who you would appoint to be your executor/s;
  • Who you would appoint as backup executor/s if your first choice were deceased or unable to act on your behalf;
  • What assets do you have to leave;
  • Who will be the beneficiaries in your Will;
  • Are any of the beneficiaries under the age of 18 years old;
  • Are there any additional instructions you would like to include in your Will.

However, do not ‘put off’ making an appointment because you are unsure of some or all of the above.  Our solicitors will be able to guide you on all the options available for your circumstances.

What items should be included in your Will 

Your Will needs to deal with:

  • Any land, houses or commercial property that you own.

Important Note: if you own property with another person, it is either held as Joint Tenants or Tenants in Common.  If a property is held as Joint Tenants then on your death your share in the property will be passed to the surviving Joint Tenant without reference to your Will or without reference to your Estate.

  • Money held in bank accounts and term deposits;
  • Any shares in companies;
  • Any other investments;
  • Personal belongings;
  • Some life insurance policies;
  • Employment entitlements;

What other things can be included in my Will?

Your Will can also include:

  • appointment of Guardians to care for any minor children;
  • appointment of a Trustee to control assets that are left to minor children, until they reach 18 years of age;
  • directions regarding your burial or cremation;
  • directions that personal assets be distributed in a particular way or to particular beneficiaries.

What items are not included in your Will?

  • In some cases, Superannuation. You should consider a Binding Death Benefit Nomination to your superannuation fund to direct the Trustee of your superannuation fund to distribute your superannuation in a specific way. You may however consider making your estate your beneficiary to direct Superannuation through your Will.
  • Some Insurance Policies;
  • Any property held as Joint Tenants, as noted above;
  • Family Businesses conducted through companies, family trusts or partnership. You should seek the advice of both your Accountant and your Solicitor in relation to succession planning for your business.

Once I have a Will do I ever need to change it?

It is important to review your Will on a regular basis. We suggest that you review your Will every three to five years and whenever your circumstances change. For example if you enter into a new relationship, get married or separate then you need to reconsider your Will.   You can always make an appointment with us to run through your current Will and check whether it meets your current circumstances.

Do It Yourself Wills

It is possible to make your own Will by purchasing a Home-made Will Kit however we would not recommend this.  We have seen far too many estates end up in undue expense and complication because of a badly written Will.

The laws around correctly signing and witnessing Wills are very detailed and complex.  If the Will has been signed and witnessed incorrectly it will affect the administration of your Estate. It may become a long and drawn out process for your loved ones and it may also cost thousands of dollars to rectify an unintended mistake.

A Will is an extremely important legal document and having it professionally drafted by a lawyer would be the most prudent course to take.  You would not take your car to a lawyer to have it serviced. Similarly do not leave your estate and the drafting of your Will in the hands of those not qualified or experienced in this area.  Having a lawyer draft your Will makes this complicated process look like an easy process simply because ‘it is what we do’.

If you would like to discuss making a Will, please contact our office.

Gordon Garling Moffit Lawyers