Writing a Will can ease stress for both you and your loved ones by providing you with peace of mind that your assets will be dealt with in the way you decide. However, often people wonder if it is worth getting a lawyer to write a Will for them, or whether they can write it themselves.
Are Lawyers Necessary to Write a Will?
While DIY Will kits can be found on websites, in post offices and sometimes from life insurance companies, it is not advisable to use these services.
Common mistakes made by people who choose to do their own Will include not signing the document properly, not having it witnessed correctly, and trying to bequeath assets or part of their estate that they don’t have full legal ownership over. Not only can this create significant conflict after someone’s death, it also takes longer to resolve, and more importantly costs much more to allocate assets if a Will has not been created properly.
Step 1: Drafting Your Will
Though fees can vary, you can organise a fairly simple Will with a lawyer for approximately $500–$800. It is recommended that you update your Will every five years, or when significant life events happen, such as buying a house, getting married or divorced, or having children.
Step 2: Consider All Possible Situations
Try to think of future scenarios that may impact the execution of your Will. It is vital to address scenarios where you and the named beneficiaries in your Will pass away at the same time. As a backup option, you may want to name someone outside of your immediate family, or a charity as an alternative beneficiary. By anticipating these alternative situations, you have a number of alternative scenarios built into your Will.
Step 3: Select an Executor
It is important that you choose someone you trust and who will be able to administer you estate according to your wishes to be the executor of your Will. You must notify the executor that you have chosen them so they can be prepared. This is the person you name in your Will to delegate your estate – your money and assets.
Step 4: Decide on Your Power of Attorney
Take this opportunity to consider appointing a power of attorney. You need to prepare for a situation in which you are incapable of making decisions due to being injured or sick. You can prepare for this by organising a power of attorney, so that you may choose who would act on your behalf in those scenarios. This person would be responsible for making financial and legal decisions. You can appoint more than one person to have power of attorney.
Step 5: Draft a Care Plan
In a care plan you are able to leave detailed instructions around your future care. You may have certain decisions already made around resuscitation on life support, pain relief and organ donation. Put your preferences in writing by completing an ‘Advance Care Directive’ and nominating someone to make medical decisions on your behalf if you are unable to do so. Some care plans are incorporated in a Deed of Enduring Guardianship.
Step 6: Store Your Important Documents Safely
Finally, it is recommended that you draft a document with all your important passwords and account details. This may include bank account details, debts (including loans), investments, insurance and superannuation details. You may choose to store this information in an envelope with your Will, saying, ‘Open in the event of my death’, or something similar. We allow clients the opportunity to store important documents with us (in safe custody) without charge to them.
It is important to be fully aware of what it takes to make a Will and other related documents and obtain professional legal assistance to ensure your wishes are accurately represented in those documents. If you would like further information regarding Wills or general Wills/ Power of Attorney / Guardianship advice, please do not hesitate to contact one of our experienced estate planning solicitors on (02) 9963 9800 or via email or via our contact form.
Making a Will can often feel like a daunting and unnecessary task. However, the unfortunate reality is that death is inevitable and proper creation of a Will is always an important task, regardless of the circumstances. In this article, we explore five of the most common objections to making a Will and why these objections may not always hold up in reality.
1. I’ve told my family my wishes and I know they will do the right thing.
Sometimes knowing the wishes of a loved one who has recently passed away can mean a variety of different things to different family members. Different people may interpret or understand your instructions in different ways. Additionally, verbal instructions are an inadequate way of dealing with your estate, as they are hard to prove and can result in delays and expenses for the administration of your affairs. The death of a family member is already an emotionally difficult time. Through ensuring you leave behind a clearly laid out and validly executed Will, your family will have one worry taken off their hands.
2. I’m a young person – the need to make a Will is far off for me.
Even with the simplest of estates in the case of a young person, the creation of a Will, enduring power of attorney and advance care directive helps ease the burden on those left, and may prevent the need to apply to the court for clarity. Making a Will as a young person also means you will have a greater understanding of your assets and affairs when you need to add to your Will in the future.
3. My affairs are just too complex.
Although estates and assets may seem overwhelming and complex, an experienced legal professional can talk through your affairs with you and help find an appropriate process for dealing with them.
4. What’s the point? Wills are successfully challenged a lot.
This is a common misconception. Wills and Estates lawyers are highly qualified in assessing the risk of a successful challenge and can suggest ways to reduce the value of the assets that are vulnerable to a challenge. Assets vulnerable to a Will challenge are assets that are owned under your own name. Your lawyer can advise you on mechanisms to reduce this risk, for example through transfer to a trust, jointly owning bank accounts and changing ownership of property to ensure your assets are dealt with in the way you desire.
5. I already have a Will from quite a few years ago.
It is important that all Wills are regularly reviewed. Circumstances will inevitably change in life, with events such as the birth of a child, the start or breakdown of a relationship or assets being bought or sold significantly changing the necessary terms of your Will. It is commonly suggested that Wills should be reviewed at least every three (3) years to ensure they reflect your current circumstances. Old Wills could be obsolete and may result in your estate not being dealt with in accordance with your wishes, or being challenged by disgruntled and self-entitled beneficiaries.
Making a Will is vital to ensure your estate is dealt with in your desired way. If you would like more information on how we can assist you in making or updating your Will, do not hesitate to contact us on 9963 9800 or here. For more information, check out our blog here.
The loss of a family member is always a difficult time, and it can be distressing to learn that you have not been included in the family member’s will. Generally, a person may leave their assets to whomever they wish. However, the law recognises that there are may be people who have relied on the deceased for support, who can sometimes be unfairly left out of the will. Such people are able to make a claim so that their needs are adequately provided for.
How do I challenge the deceased’s will?
There are two main grounds for challenging the deceased’s will or contesting the estate. These are:
- Challenging the validity of the will – this may be on the basis that the will maker did not have the legal capacity to make the will, or didn’t understand what they were signing; or
- A claim can be made under the Succession Act 2006 (NSW) on the basis that the will maker failed to provide for a family member where they had a moral obligation to do so.
Can anyone challenge a will?
Under the Succession Act, only persons who qualify as eligible persons under the Act may apply to the court. There are seven categories of eligible persons, namely:
- The wife or husband of the deceased when they died;
- A person in a de facto relationship with the deceased when they died (including same sex partners);
- A child of the deceased;
- Former wives and husbands of the deceased or former de facto partners of the deceased, who were receiving or were entitled to receive maintenance from the deceased when they died;
- A grandchild of the deceased, in certain circumstances;
- A step-child of the deceased in certain circumstances; and
- A parent of the deceased.
To show that you are entitled to receive some benefit from the estate you must show that the deceased had an obligation to provide for you and that you have been left without adequate provision for your proper maintenance, education or advancement in life. It is important to note that inheritance claims are subject to a strict time limit, which is 12 months after the date of death.
You may not need to go to court as most parties are encouraged to resolve their claims by mediation to avoid legal costs or any lengthy delays.
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If you are concerned, please be sure to contact us as soon as possible or you may be prevented from making a claim. It is usually a good idea to try and get a copy of the last will of the deceased so that you can discuss the details with us more accurately. If you or someone you know wants more information or needs help or advice, please contact us on (02) 9963 9800 or contact us via our form, here. If you would like to prepare your will with us, please fill out the Will Instruction Form and we will contact you.