Many Australians don’t have a Will in place. We often hear comments such as:-
“I don’t have any assets of value”
“I’ve discussed my wishes with my spouse”
“I know my family will do the right thing, so I’ll leave it in their hands”
“I’m currently in good health so I’ll deal with it another time”
Death is a touchy topic that most of us don’t like to think about, let alone our own death. However, it’s something none of us can avoid. It’s times like the current COVID-19 pandemic that we’re faced with the reality that illness can indeed result in the worst-case scenario.
The reason for having a Will is certainty. Certainty about who oversees the winding up your affairs and paying your debts. Certainty about who will inherit your assets. Certainty about who will care for your children.
The death of a loved one is a deeply emotional time for family and friends. Without a Will that details your wishes and directions, these people can be largely left in the dark. They’ll be facing large decisions, often based on what they think you would have wanted. Emotions can run high and disagreements can often arise.
Dying without a Will is known as dying “intestate”. In order to wind up your affairs and distribute your assets, your next of kin must make an application to the Court for Letters of Administration.
Under this application the Court is asked to grant that person, your “administrator”, formal authority to make these decisions. Your administrator will then need to follow the strict laws about distributing your assets – there’s not much room here for personal choice/discretion. The people who will inherit your assets might not necessarily be the ones you would have ideally had in mind.
Without a Will, intestacy laws must be followed. It could mean the family home is sold against your wishes.
Having a Will on the other hand means there’s a person whom you trust nominated to make these decisions. There’s also a clear direction on who will inherit your assets. Your wishes are clearly documented.
Put simply, having a Will can save your family and friends a lot of unnecessary emotional and financial stress at one of the hardest times in their lives.
What are the steps to making a Will?
Okay, so you’ve made the decision to get your affairs in order and prepare a Will. Now what to do? Make an appointment with your lawyer.
Yes, you can purchase a DIY Will-Kit at your local post office or download a Will from online, however, these options are fraught with dangers. They are often restrictive and don’t take into account all of the various considerations which a lawyer will put to mind when tailoring the provisions of your Will. A $30 Will-Kit may seem appealing, but in the long run it could cost your Estate tens of thousands of dollars in legal fees to fix a potentially invalid Will.
In contrast, Stone Group Lawyers will work with you to determine your family tree, the people you trust to manage your affairs, and who you would like to inherit which assets. We will then ensure that your Will is validly signed to be legally binding.
When it comes time to sign your Will, you must sign it in the presence of two witnesses. They cannot be relatives or someone receiving an inheritance under your Will.
If you have concerns about current social distancing regulations, then steps can be taken to put in place a temporary informal Will. This may involve recording the signing of your Will in the presence of witnesses over live-stream video. The Will won’t strictly be legally binding, but it will be a temporary solution until such time as you can sign it again validly. Should the worst happen in the meantime, take comfort that courts may uphold informal Wills if there’s enough evidence to show that you intended the document to be binding.
The world is currently an uncertain place. If you can have a degree of control over something in your life right now, let it be your Estate planning.
The team at Stone Group Lawyers are ready to provide you with advice and guidance to assist you with your Estate planning needs at this challenging time. We are offering consultations via phone, Skype, Facetime and Whatsapp – call 1300 088 440 to arrange a time to discuss your Will.
Luke is an Associate with Stone Group Lawyers and is a regular contributor to online and print media for Inside Franchise Business. Luke is also a member of the Queensland Law Society Franchise Law Committee.