A will is an opportunity to express what you would like to happen after you die.
No one likes to think about death, let alone plan their own, but ensuring your wishes are clear and will be carried out is important.
When you see a lawyer, there are five main questions you will be asked:
Who would you like your executor to be?
An executor is the person who you select to carry out your last instructions.
It is quite common to select one person as your preferred executor, and one or more people to substitute if the first person is unable to act. For example, if the first person dies or is physically or mentally unable to act.
Another consideration is how many executors you want. It is possible to appoint more than one person to act at the same time. The most common reason for this is convenience, and to allow your appointees flexibility to decide between them who has the capacity and stamina to act, at the relevant time. If you decide to do this, it is crucial to think about what will happen, or whose opinion will be followed, if there is an argument.
It is also crucial to ensure that the person you select to act is someone you trust. Usually, this means a spouse, adult child or other close family member (such as a parent or sibling).
- Who would you like to give your money and other property to?
People who live in NSW and the ACT have freedom of testation – this means that you have the power to make (almost) whatever wishes you want.
There are some important rules your lawyer will explain to you at your appointment – for example, about making gifts to children – and your legal obligations to provide for family (for more information about this, visit our blog post “What is family provision? How does it apply to me?”).
If your will does not effectively say where all of your property is to go, after you die, legislation will decide for you. This is called ‘intestacy.’ If there is a case of intestacy, you have no say about what happens to your property. It is even possible for your money and property to go to someone who you have never met! Your property will usually be distributed amongst your blood relatives according to a formula set out in legislation. However, where no blood relatives can be found, the money and property will go the State.
So, to make sure that your money and property goes where you want it to go, your lawyer will advise you to plan well ahead.
For example, you may consider planning to: have grandchildren substitute for children; have siblings, nieces or nephews substitute for both; or include a ‘catch-all’ substitute – for example, a charity.
Who do you want to look after your minor children?
Under Australian Law, the general rule is that each of the parents of a child who is not 18 have parental responsibility for the child.
This means that, in general, your child’s other parent will usually be your child’s sole legal guardian when you die.
Your lawyer will encourage you to plan ahead to decide who you would want to be guardian of your children, where you and the other parent have both died.
This should be someone you trust. Usually, this means another adult child, a close family member (such as the child’s grandparents, aunt or uncle) or a close family friend (for example, your child’s godparents)
Do you run a business or have complicated personal affairs?
Complicated personal affairs, and businesses, mean more things to contemplate.
For example, your lawyer may need to vary trust deeds to make sure that your will can take effect as intended.
Or, your lawyer may need to ensure that you appoint an alternate director to your company or that you comply with an existing shareholders’ agreement or buy-sell agreement for your business.
Please visit our business law succession page, for further information about our specialist services in this area.
Do you have any superannuation or life insurance arrangements in place?
It is important to consider where your super and life insurance will go or who it will go to when you die so the proper arrangements can be made.
Super is dealt with separately to the rest of your money and other property. If you have compulsory superannuation with a retail fund, your lawyer will offer to assist you to create or update a nomination for where you would like your superannuation death benefits to be paid.
For more information about superannuation and life insurance, read our blog ‘Superannuation and life Insurance after you die’.
So, do you need a will?
The short answer is yes!
The long answer is, it depends on your circumstances.
From a lawyer’s perspective, there are many good reasons why anyone over 18 years should consider making a will, including:
- You can decide how your property will be divided
- It can minimise taxes for people who are receiving property
- It can minimise legal risk, such as the risk of intestacy
- You can choose someone you trust to carry out your final wishes