While estate planning may be daunting to think about, creating a will is an essential step in ensuring that that your wishes are respected, and that your loved ones are taken care of.
What is a will?
A will is a legal document that outlines your wishes for your estate after you pass away. In New South Wales, wills are governed by the Succession Act 2006 (Succession Act).
In order for a will to be valid there are specific requirements that need to be met:
- You must be at least 18 years of age;
- You must have the mental capacity to make the will, this is known as testamentary capacity.
- The will must be in writing (whether handwritten, typed or printed);
- The will must be signed by you (the will-maker), or by some other person in the presence of the will-maker and at the will-maker’s direction;
- Your signature must be witnessed by at least two other people and those witnesses must also sign the will. The witnesses must not be beneficiaries of the will.
To avoid any challenges to its validity when it goes through the probate process it is important to ensure that your will meets the legal requirements. One of the reasons a will can be challenged is if you are afflicted with certain medical conditions. It could be argued that you do not have testamentary capacity and therefore your will becomes invalid during the probate process.
Our experienced will and probate lawyers can draft your will to ensure that it meets the legal requirements as well as your wishes and avoid some of the common pitfalls. We will be able to advise you if there any doubts about testamentary capacity or what steps can be taken to avoid your will becoming contested after your passing.
6 reasons why you should have a valid will
Regardless of your age or financial circumstances, it is always important to have a valid will in place. Here are some of the benefits of having a valid will:
- Your estate is dealt with in accordance with your wishes.
If you die without a valid will, you are considered to have died “intestate” and your estate is dealt with in accordance with the intestacy rules under the Succession Act. By creating a will, you get to choose who gets your assets – and who doesn’t. - You get to choose who manages your estate.
When making a will, you will need to appoint an executor, and in some cases, a trustee. An executor’s role is to carry out the instructions in your will and legally administer the estate. A trustee administers any trusts established by the will. You can choose one person to perform both roles or choose different people for each role – it’s up to you! - You can insert provisions for specific wishes.
A will can be used to make provisions for specific wishes, such as gifts to friends, family and charitable donations. - You minimise the likelihood of any disputes.
Despite speaking to family members about your wishes, dying without a will leaves your family guessing about what your intentions for the distribution of your assets and the division of any inheritance. To add to that, if your family dynamics are complicated, this can cause disagreements. Having a will that sets out your instructions minimises the risk of family breakdown, saves your family time, money and stress. - You can appoint guardians for your children.
If you have children under the age of 18, you can appoint a guardian for your minor children, ensuring they are in the care of someone you trust. - You can provide instructions as to funeral arrangements.
Many times conversations relating to burial and cremations are avoided. Having a will that sets out your wishes not only gives you comfort but also gives the executors some direction.
What if I need to change something in my will?
It is important to periodically review and update your will to reflect changes in your life circumstances.
A few examples lifestyle changes which require you to update your will include:
- If you marry, separate or divorce;
- After the birth of each child;
- If there is a significant change in your financial circumstances;
- If a person named in the will has died;
- If your wishes have changed.
You can’t manually update an existing will, but you can add a codicil or simply replace it with a new one. Our experienced estate lawyers can assist you in drafting an updated will that aligns with your life circumstances and ensures that your wishes are known when the time comes.
Where should I keep my will?
Your original will is an important legal document and must be kept in a safe and secure place. You can choose to store your original will at home, however you should make sure that it is stored in a safe place. It’s important that it doesn’t become damaged or deteriorated over time or has the potential to be misplaced.
You can also choose to store your original will in a safe deposit box at your bank, safe custody at your Solicitor’s office or with the NSW Trustee and Guardian.
Your original will should also be accessible to your Executor when you pass away. We recommend that you give a copy to your Executor in a sealed envelope and once you have chosen a location, advise your Executor where the original document is stored.
Start creating your will today
Creating a will is an essential part of estate planning. A will helps protect your estate and provides comfort and clarity to your loved ones after you pass away. It is important to ensure that your will is legally valid and that it is kept up to date. Our experienced estate planning lawyers can step you through the process and help you craft a will that is carefully considered and accurately represents your wishes.
Don’t leave your loved ones with the burden of sorting out your affairs without clear guidance. Get in touch with us today to get help writing your legal will.
