In Part 1 of this article we discussed the vital importance of making a will, and the potentially inequitable repercussions for your loved ones if you fail to do so. In this part, we will be discussing some of the key information that you may wish to include in your will, as well as some commonly problematic areas that occur when writing a will.
As discussed previously, your will describes how you wish for your estate to be distributed when you die. The executor then takes your will to the Probate Office who determines whether or not they will accept the will. If the will is accepted, the executor can then begin to deal with your estate as per your wishes. The ramifications of your will being rejected can be huge, with the potential for enormous legal costs that will eat away significant amounts of your estate. Accordingly, as you will no longer be around to clarify any ambiguities or errors in your will if a problem is found, it is essential that your will is as specific, accurate and current as possible when you pass away. While it is not mandatory to enlist the help of a lawyer for writing a will (you may do it yourself,) the requirement for certain formalities to be adhered to, as well as the level of detail that is required, mean that it is a risky proposition to ever use a DIY will kit.
What possessions can I put into my will?
Broadly speaking, nearly anything that you own can be put into a will. This includes:
- Particular chattels (such as paintings, books or furniture);
- Real property (land). The exception to this is if you own land as a joint tenant with another. In this circumstance, your interest in the land will be automatically transferred to the remaining owner;
- Motor vehicles;
- Shares in a company;
- Everything else (which is not expressly stated in the will); and
- The guardianship of your children.
It is important to note that superannuation cannot be bequeathed under a will. You need to get into contact with your super provider in order to determine who will receive your super upon your death.
Who can receive gifts under my will?
You have a wide discretion to leave gifts under your will to whomever you choose. This can include dependents, distant relatives, charities, friends and non-for-profit organisations. Some things to keep in mind while you are considering the distribution of your estate include:
- If any particular party is left out of the will when it would be expected they would receive a share of your assets (ie. a child or spouse,) it is essential to declare the reasons for leaving them out;
- Ensuring your dependents are left enough to survive on. If you do not leave them enough, they may take legal action to claim more of your assets;
- Assets that are left to an individual under the age of 18 must be held in trust until they turn 18, unless the assets are used for their benefit (such as their education.)
What about my debts?
Unfortunately, when you die your assets are not the only things that you leave behind. Any unpaid debts that may be attributed to you will need to be paid from your estate. Often it is advisable to include a clause into your will that states you wish for your unpaid debts to be paid from the estate before your assets are distributed. This ensures that your assets remain unencumbered when the beneficiaries of your will inherit them.
An invalid will may create disastrous and damaging circumstances for the loved ones of a deceased person. The most failsafe way to create a watertight will is to have a lawyer prepare one for you, in strict accordance with your wishes. This can ensure that you have peace of mind regarding the management of your estate after your death. Part 3 of this article will discuss some of the most recent changes to the legal landscape around challenging a will. If you would like to make a will or have any questions about this article, please get in contact with us on 03 8877 6888.
To read Part 1 of this article for more general information about why it is essential to have a will, click http://www.mahons.com.au/news/2016/5/11/wills-part-1
Disclaimer: This article contains general information only and is not intended to be a substitute for obtaining legal advice.