Below you’ll find answers to the questions we get asked the most about estate planning.
In short, if you don’t have a will:
- your young children may not be looked after by the people you intended;
- some unintended people may benefit considerably, and some intended people may not;
- assets you may have wanted to be passed on may need to be sold off so that unintended beneficiaries can be paid out;
- your beneficiaries may lose considerable tax and asset protection benefits;
By making a will, the winding up of your affairs can be planned, and cost effectively executed, leaving you and your loved ones with peace of mind.
None of us are immune from the circumstances of life: people get married, have children, divorce, re-marry, buy assets, sell them, go bankrupt, have falling outs, get injured, inherit and lose fortunes. With this in mind, keep your will up to date.
You can change your will any time you like. Just let us know, as it needs to be done formally. In fact, we recommend you review your will every couple of years to ensure that it is still in keeping with your wishes.
- Executors – who will run my estate.
- Disposal and Beneficiaries – what happens to my belongings/who gets what.
- Body Instructions – what to do with me when I’m gone (burial, cremation, organ donation etc.)
We generally recommend keeping things as simple as possible when it comes to the gifting of one’s assets. Where suitable, a gift of your entire estate to your partner may be best, and if he or she does not survive you, then the remainder to your children and grandchildren.
Everyone has assets – even if you think they aren’t substantial or consequential. It’s advisable to have a Will in place to ensure your loved ones know what to do with your effects.
Your kids will need to be provided for under your Will, or otherwise you will need a statement of reasons declaration to explain why a child or children are not provided for under your Will. The Court will review this reasoning in the circumstance that your Will is challenged.
For most people in relationships, their spouse / partner is the best and most practical choice. For those not in relationships, other family members or close friends often are the best choice, but not always. Parents are often not a good choice as it is more likely they’ll pass away before you do.
Capacity is the awareness and ability to make decisions with a sound mind. From a legal capacity perspective, loss of capacity can only be determined by a medical professional.
We encourage you to provide alternate beneficiaries and prepare your Wills with these situations in mind. For example, inclusion of the per stirpes rule provides that should your beneficiary not survive you, their interest will pass along to their children.
We recommend you keep it in a safe place. We can keep it in our strong room for you free of charge, or you can give it to your bank for safekeeping.
You should also notify your executors that you have appointed them, and where the will is (there is no need to give them a copy or discuss the contents if you don’t wish to).
We don’t recommend you keep it at home – if your will is misplaced or accidentally destroyed, this can be construed as an intention to revoke it and draft a new will – this could result in intestacy.