Wills

What Is a Will?

A will is a document that a person can make to decide what happens to their property after death. It must be in writing and signed by the person making the will in the presence of two witnesses. All must also sign the will together. A will professionally prepared by one of our lawyers can ensure those whom you nominate deal with your property how you want it to be. This way, your beneficiaries avoid unnecessary expenses required to fix an invalid will or defend against a family provision claim.

Contact us now to get your will and estate plan started. Or read on to learn more.

Home visits

Our will lawyers can prepare your will and advise you how to avoid costly mistakes. We can visit you in your home or in our office in Mount Barker. We regularly visit clients in nursing homes and hospitals to make it even more convenient for you.

Complex Wills & Estate Plans

Most people require only a simple will. However, if you have an existing family trust or estate plan, or if you have a split family or a large estate, a complex will or estate plan may better serve your needs. We can also discuss the substantial tax and asset protection advantages associated with wills and estate planning. To find out more about estate plans, click here.

What Property Is Not Covered by a Will?

There are many types of property you cannot give by will, including:

  • Jointly held property – this passes automatically to the surviving joint owner (or owners) on the death of the first dying joint owner — it does not form part of the estate of the first person dying. (If you own property with another person you may hold it either as ‘joint tenants’ or as ‘tenants in common’. It is easy to confuse the two, and it is important to be sure what type of tenancy you have in the property. See  ‘joint tenancy’ and ‘tenancy in common’)
  • Property held in trust – this property will pass to the nominated trustee to hold for the beneficiaries of the trust according to the terms of the trust.
  • Shares – a will cannot give certain shares in private companies.
  • Partnership property – a will can give your interest in partnership property, but not partnership property itself.
  • Superannuation – your superannuation arrangements may not entitle you to dispose of your superannuation assets by your will. The rules differ from scheme to scheme — you should discuss the matter with the administrators of your superannuation fund.
  • The proceeds of life insurance policies – a nominated beneficiary of the policy will take precedence over the terms of the will. Here, the proceeds of the policy do not form part of the estate. If you wish the proceeds of the policy to go to someone other than the nominee, you cannot do it via the will: you must change the nomination. If you are not sure whether you nominated a beneficiary, or who you nominated, consult the insurance company concerned.
  • Capital guarantee deposits – a will nominating a beneficiary cannot give some capital guarantee deposits (for example, with friendly societies, and some banks).
  • Property sold but not yet transferred – property you have contracted to sell, but not yet transferred, cannot be given by will.
  • Property subject to a contract to leave by will – property you have contracted to leave by will, and property subject to a mutual wills agreement, generally cannot be given by will, but the question is complicated and good legal advice is required.

What If I Don’t Have a Will?

Making a valid will is the safest way to have your property dealt with according to your final wishes. If you die without making a valid will, the rules of intestacy (a legal formula) will govern the distribution of your assets. This might mean that your assets do not end up with the person you would have chosen. It also means that you have no control over who distributes your assets. Even if you’re happy to have your assets pass according to the law, consider the possibility that people you never intended to benefit may end up with part of your estate. 

Wills can be as simple or as complicated as you wish, but your family will always be better off if you have one. Yes, there is legislation in every State and Territory to compensate for when there is no will, but like most safety nets it’s a second-best option, by a long way.

When Should I Change my Will?

Reviewing your will every couple of years is important, so it is an accurate reflection of your testamentary wishes. However, there are certain events that should always prompt you to review and amend your will. These may include:

  • separation
  • divorce 
  • death of a relative
  • birth of a child
  • adoption
  • change of name
  • receiving a large inheritance
  • becoming seriously ill
  • making a purchase or sale of a substantial asset
  • establishing a self-managed superannuation fund 
  • a beneficiary becoming disabled or at risk
  • if an executor dies, becomes unwilling to act as executor or becomes unsuitable due to age, ill health or for any other reason
  • when a beneficiary dies
  • if you have specifically left any property which you subsequently sell, give away, put in trust or into a partnership, or which changes its character or name. (This applies particularly to specifically bequeathed shares in a company which restructures its share capital) 
  • taxation laws change.

Further things to consider

If you marry, your marriage revokes your will unless the will is expressed to be made in contemplation of that marriage. Entering a domestic partnership or personal relationship can also affect your will.

Ending a domestic partnership or personal relationship can affect your will and your legal obligations. The matter is complex, and the law is not uniform throughout Australia. Some states are considering proposals for change.

You may revoke or make a new will in different terms without consulting or informing your husband, wife, or partner. We emphasise however that if one of you takes this action and consults us about it, our ethical duty will prevent us from drafting the new will for you. Furthermore, we will be required us to tell the other of you about your intentions.

Do not add to or delete from the will after execution. Consult a solicitor if you want to change or revoke your will because even the simplest changes must be correctly done, or they may have disastrous results.

If you later wish to make a list, letter or other document which relates to your affairs after your death, consult a solicitor. The danger is that it may not be clear whether the document is intended to be testamentary (that is, a will or codicil), and litigation about the status of the document may result.

What If My Will Is Invalid?

If a will is made but is invalid—for example, because it does not comply with the required formalities—an application can be made to the Supreme Court to have the invalid will treated as a valid will provided it is clear that the deceased person intended the document to be his or her will.

However, such an application is not always successful and, even when it is successful, it is an expensive process that can be avoided by having a valid will prepared by a lawyer.

Family Provision Claims

A person making a will is free to dispose of his property in any way that he or she sees fit. However, the Inheritance (Family Provision) Act 1972 (SA) provides an exception.

That Act allows certain relatives, including the spouse and children of the deceased, to claim greater provision for themselves if the deceased did not make adequate provision for their maintenance and support in his or her will.

A will lawyer can advise you how to best avoid the possibility of a long and expensive family provision claim against your estate. Click here for more information.

What Is an Enduring Power of Attorney?

An Enduring Power of Attorney is a document that authorises a person you choose to make financial and property decisions, and certain other legal and business decisions, on your behalf.

Usually, an Enduring Power of Attorney is made so that it takes effect only if you become incapable of making the decisions yourself (although it can be made to take effect straight away).

Cost?

Our lawyers can prepare your will for as little as $375, and even less if you request two wills for a couple or a package with an Enduring Power of Attorney or Advance Care Directions. We typically charge based upon time completed for complex wills and estate plans, however a fixed fee price may be negotiated. Click here for details.

Contact us now to get your will and estate plan drafted by one of our expert will lawyers, or keep reading to learn more.

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