Wills, Enduring Guardianship and Enduring Power of Attorney

WILLS

Why do I need a Will?

If you don’t have a will, you don’t have any say about how your estate is distributed. If you die without a will (known as ‘dying intestate’) your estate will be distributed to your relatives according to a legal formula (called the ‘intestacy rules’). This could be very different from what you wanted or intended to happen. Dying ‘intestate’ can also cause complications, delays and extra costs for those you leave behind. If you die intestate and you don’t have any relatives closer than a first cousin, your estate will go to the government.

STEP 1: CONSULT A LAWYER WITH EXPERIENCE IN WILLS AND ESTATES

Blunden & Montgomery can help you ensure that your Will is valid according to the law and that it adequately expresses your wishes.

If you choose to make your Will using an online or postal ‘Will kit’, it may be difficult to know whether it includes all the necessary information and details required. You also won’t receive the benefit of legal advice about the manner in which you can best distribute your assets, and any risks associated with the decisions you make. We have found home made wills are subject to court action and significant costs.

STEP 2: PROVIDE SUPPORTING DOCUMENTATION

For a Will to be valid there are some basic requirements:

  • When creating the Will, you must have testamentary capacity (which means you must be over 18 years old and understand what you are doing).
  • The Will must be in writing (whether handwritten, typed or printed).
  • The Will must be signed and your signature must be witnessed by two people over the age of 18.
  • Those two witnesses must also sign the Will.

STEP 3: PLAN AHEAD

Consider the following questions and ensure the relevant information contained in your Will is up to date and reflects your wishes:

  • What are the names and details of the chosen beneficiaries?
  • What are the names and details of the chosen executor and/or trustee? (You can have more than one and we recommend a reserve.)
  • How would you like to allocate and divide your property and possessions?
  • Do you require any guardianship clauses for children? This is particularly relevant to same sex couples, as the right to guardianship varies across Australia.

STEP 4: KEEP YOUR WILL IN A SAFE PLACE

There’s no need to file it with any particular organisation, but once you have signed off on it, keep your Will in a safe but accessible place. We offer a free service to place you will in safe custody.

STEP 5: APPOINT AN EXECUTOR AND TRUSTEE

When you make a Will, you need to appoint an executor to look after your estate once you have died.

A trustee (this can be the same person as the executor) is often appointed to administer any trusts set up in the Will. This scenario usually occurs if you leave assets to people under the age of 18.

When choosing an executor or trustee (you may choose more than one of each), you should first ensure that they are comfortable taking on the responsibility and performing the role. Keep in mind that it is often wise to appoint someone younger than yourself, or to nominate reserve beneficiaries, in case the people you have appointed happen to die before your estate has been resolved. You also have the option to appoint a public trustee to do the job for you, if needed.

The executor must:

  • gather in all of the deceased’s assets
  • pay all the deceased individual debts
  • distribute the deceased’s estate in accordance with their Will.

UPDATING A WILL

A Will is never a set and forget document. Individuals will probably tweak it throughout their lives, particularly when their circumstances change significantly; for example, due to marriage, divorce or the death of a beneficiary.

If you have been meaning to update your Will, we strongly advise you to get the process moving—even if that involves tough conversations.