5 More Reasons to Prepare Your Will with an Expert

KEY TAKEAWAYS:

• A Will is more than a straightforward document that is able to encompass all of your assets. A properly prepared Will can help to ensure that your wishes are legally effective and reduce the risk of disputes.

• Your Will forms part of a broader estate plan that considers your assets, taxation and financial implications.

• Professional advice can help to ensure that your assets are properly dealt with and your beneficiaries are protected.

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A Will may seem like a straightforward document that decides who receives your assets and when. DIY Wills and online Will kits may seem convenient and cost-effective, however estate planning is rarely one size fits all. It is essential to seek out legal advice from a lawyer that specialises in Wills and Estates law to ensure that your wishes are properly documented and that your broader circumstances have been considered.

Here are five more reasons why you should see a lawyer when preparing your estate planning documents:

1. Avoiding invalid execution

There are strict legislative requirements for the signing of a Will. Generally, the Will must be signed by the testator (person who makes a Will) in the presence of at least two witnesses who are present at the same time, with each witness also signing the Will in the presence of the testator. The witnesses must also be aware that the document is intended to be the testator’s Will.

These requirements are important because an incorrectly executed Will may be challenged or may require an application to the Court for the Will to be recognised as valid. This can result in additional legal costs, delays and uncertainty for your estate, and in some circumstances may result in the Will not being accepted as valid.

A Wills and Estates lawyer can assist by ensuring that your Will is properly executed and witnessed, identifying any circumstances that may create a risk of challenge, and providing advice about how your Will should be drafted to reflect your personal and family circumstances.

This is the most common reason a will is invalid.  Incorrect execution, invalid people witnessing the will, execution not provided correctly by the executor/ executrix.

 

2. Coordinating your estate plan with other professional areas

While your Will is important for the distribution of your assets in accordance with your wishes, it does not work in isolation. The way in which your assets are owned or structured can affect how they are dealt with following your death and may have tax or financial implications for your beneficiaries.

For example, superannuation does not necessarily form part of your estate and may instead be paid directly to a nominated beneficiary. The tax treatment of superannuation may also differ depending on who receives the benefit. Similarly, jointly owned assets, trusts, companies and other investments may be dealt with differently from assets that form part of your estate.

A lawyer who specialises in Wills and Estates can identify these issues and advise you on the legal aspects of how your assets and estate planning arrangements may interact. While a Wills and Estates lawyer does not provide specialist tax or financial advice, they can identify where that advice may be required and help ensure it is properly considered when preparing your estate plan.

Wills and Estates lawyers can work in conjunction with tax agents, accountants or financial advisers to ensure that the legal, tax and financial considerations are appropriately addressed and that your estate plan works together as intended.

This is a common mistake where an executor/ executrix is only focussed on distributing their assets and or income stream and not what situation a beneficiary may be in on the time of distribution, by co ordinating this could save your beneficiary and estate thousands of dollars.

 

3. Your Will is only part of your estate plan

Your Will, Power of Attorney and Enduring Guardianship are important parts of a comprehensive estate plan and should be considered together. While your Will sets out your wishes for how your estate is to be dealt with after your death, a Power of Attorney and Enduring Guardianship operate during your lifetime if you are unable to make or communicate decisions for yourself.

A Power of Attorney allows you to appoint someone you trust to make financial and legal decisions on your behalf, while an Enduring Guardianship allows you to appoint someone to make personal, lifestyle and medical decisions on your behalf. Having these documents in place can help ensure that appropriate people are authorised to make decisions for you if you lose capacity, rather than leaving your loved ones to navigate uncertainty about who can act on your behalf.

These documents also have specific legal requirements for their preparation, signing and witnessing. A Wills and Estates lawyer can advise you on which documents are appropriate for your circumstances, ensure they are properly prepared and executed, and help ensure that your Will, Power of Attorney and Enduring Guardianship work together as part of your overall estate plan.

People only think about what happens when I die, but what happens when the most unimaginable issue happens whilst you’re alive and you lose capacity or your partner does where assets are held together.  This can be hard to navigate without these living documents.

 

4. Protecting vulnerable beneficiaries 

When preparing your Will, it is important to consider who you would like to benefit from your estate and when a beneficiary will receive their entitlement. In some circumstances, leaving an inheritance directly to a beneficiary may not provide them with adequate protection. For example, monetary entitlements cannot simply be dealt with in the same way for minor beneficiaries as they can for adult beneficiaries, and a beneficiary with a disability may benefit from appropriate trust provisions to help preserve their access to government benefits and ensure that a significant inheritance is managed appropriately on their behalf.

A legal professional will be able to recommend options for structuring your Will to provide greater protection for your vulnerable beneficiaries. This may include the incorporation of testamentary, disability or minor beneficiary trusts, which can dictate how assets will be managed for the beneficiary. It is important to discuss who will be responsible for managing any trusts you may have and the terms of the trust for beneficiaries.

Securing professional advice in this way can ensure that any inheritances to your vulnerable beneficiaries can provide lasting support and reduce the risk of mismanaging assets within your estate.

It is becoming more of a demand in today’s society with higher needs of children and siblings that people’s personal factors and capacity are considered when considering them as a beneficiary of your estate.

 

5. Understanding How Your Assets Will Pass

One of the most common misconceptions about making a Will is that every asset you own will be included in your estate. For example, we assisted a client who wanted to leave his 50% interest in a property to his children from a previous relationship. However, the property was held as joint tenants with his current de facto partner, meaning his interest would have automatically passed to his de facto partner on his death rather than under his Will. We identified this issue and assisted the client to sever the joint tenancy, allowing his interest in the property to form part of his estate and enabling his wishes to be given effect.

A comprehensive estate plan involves more than simply listing assets in a Will. It involves understanding how each asset may pass on your death and whether that outcome reflects your wishes for your estate planning.

Blended families are becoming the most common family unit in Australia, and this can lead to challenges when wanting to distribute to bio logical children as well as care for your partner if they survive you.

 

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