Wills & Estate Planning
Why should I make a will?
- to make sure the people you want to benefit will do so. If you have no will the law decides who benefits. In some cases it is a lottery as to which members of your family, or your spouse’s family, will inherit your estate;
- to choose who is to be the executor(s) and in control of making decisions. These people may also be the trustees of money for your children;
- to make specific gifts;
- to ensure a straightforward process of handling your affairs;
- to name guardians of your children;
- to give flexibility to the executor(s) in the way your estate is administered;
- to enable your estate to be distributed in the most tax-effective way; and
- where you want to make provision for beneficiaries with special needs or circumstances.
What does “my estate” mean?
Your will can only operate over assets that are in your estate. Anything that is owned jointly with someone else will automatically pass to the other person unless it is held as “tenants in common”. Assets in family trusts, companies or superannuation are not automatically covered by your will. If you are involved in these arrangements it is important to get advice about the ways of ensuring these assets pass to whom you wish to benefit.
Who can be my executor?
Anyone over the age of 18 can be appointed an executor. The role of the executor is to be impartial to the interests of beneficiaries and to undertake the administration of the estate. Commonly spouses are initially each other’s executor with others being appointed on the death of both of them. A common misconception is that beneficiaries cannot be executors. This is incorrect. It is common for beneficiaries to also be the executors. Whoever is executor is the person who has the power to make the decisions about disposal or distribution of assets. You may wish to nominate more than one person to act in this role. If so, all executors must agree on all aspects of the administration of the estate
What are trustee companies?
If Public Trustee or one of the other trustee companies has made your will, they are often appointed your executors and charge a reasonably high commission when handling your estate. They may also be less flexible in how assets are to be distributed and are likely to take far longer to finish the administration of your estate. Their fees are usually far more than legal expenses would be if you choose a private executor who has advice and help from your lawyer.
Does my will cover my superannuation?
You may not realise that money invested in some superannuation funds is not yours to control. The trustees of the fund usually have some discretion as to where to pay the money under the terms of the deed setting up the scheme. They can pay it to whoever you have nominated as a beneficiary but they are not legally obliged to do so unless you have made a Binding Death Benefit Nomination which are not offered as options by all funds. They can decide to pay it to your estate and then your will deals with who will benefit. Either way you should notify them of your preferred way of dealing with the money. If you are not certain what the rules of your fund are then it is important to find out before you make a will as it may have an impact on what you decide to do.
Can I do a will kit?
A “homemade” will can be an unwittingly expensive and disastrous step due to uncertainty or ambiguity of words used, misunderstanding or ignorance of legal implications of gifts and not completing it correctly. All of these cause delay and expense for your family. The cost of a properly drawn will is not that expensive when compared with the costs of fixing up problems caused by “homemade” wills.
How do I avoid disputes about my will?
All lawyers at Adelta Legal are experienced in all aspects of estate planning, including giving advice on situations where you have reason to exclude or reduce a benefit to someone who might be expecting to inherit from you. Our experience with contested wills means we see these situations from all angles – in particular, we see what can go wrong and we can prepare your will and other documents to prevent that happening when it comes to distributing your estate.
To download information about Wills and Estate Planning click here.