Making a Will is an important step in the estate planning process. For some people, their plan may not involve much more than this but for others, making a Will is only the first step. A properly made Will contains enforceable directions as to how the Willmaker wants to dispose of his or her personal estate upon his or her death. If you die without a Will, your estate will be divided according to the law of the State in which you reside, regardless of your wishes.
A Will only becomes effective when the Willmaker dies. Until then, it can be changed at any time (provided it is properly made) and should be reviewed and changed as and when the Willmaker's circumstances and laws change.
What a Will Cannot DoA Will is legally effective only to the extent that it directs the disposal of your personal assets and liabilities upon your death. Provisions purporting to deal with issues such as:-
- Burial or cremation;
- Your children's welfare;
- The disposal of assets held by companies or trusts (including Superannuation Funds); or
- The disposal of assets held as a joint tenancy;
are legally unenforceable. These matters must be dealt with separately from your Will.
Additionally a Will may also be ineffective in distributing:-
- Superannuation entitlements; and/or
- Life Insurance payments; and/or
- Business assets;
unless you take specific steps to ensure that it does.
Matters to be considered in making a Will are: -
- Executor
You must appoint one or more people to act as executor of your Estate. The executor is responsible for collecting together your assets, paying out your debts and distributing your estate in accordance with your wishes. An executor does not need any special legal or other skills. They should however be reliable and honest and have reasonable commercial sense.
Your executor should, however, be over the age of eighteen years, someone you trust and willing to accept the responsibility attendant upon administering your estate.
You may appoint up to four (4) executors at any one time. In the absence of one or more individuals ready, willing or able to fulfil the role you may elect to appoint the Public Trustee or another professional trustee company to act in that role for you. Executors are entitled to charge a commission in recompense for their services and the extent of that commission is the province of the Court.
- Beneficiaries
You may leave your estate to the beneficiaries of your choice. A beneficiary can be a person, company, trust, charity or other organisation. You may provide for substituted beneficiaries if your first choice beneficiary predeceases you or is unable to accept your bequest for any reason.
A beneficiary must survive the Willmaker by at least 30 days otherwise that beneficiary is deemed to have predeceased the Willmaker and as a result the gift to that beneficiary is deemed to have failed.
- Trustee
It is often either legally necessary or good estate planning to leave your estate to beneficiaries via a trust (see - Testamentary Trusts link to TT page). Often the estate executor is also appointed as trustee however there is no need for them to be the same. For example, if you wish to make a bequest to a child under the age of eighteen, that bequest must be left to a trustee who is over the age of eighteen to hold, on trust, for the minor beneficiary until they turn eighteen or such other age as you nominate.
- Guardians
You can appoint guardians of your infant children in your Will. It is prudent that your nominated guardian should be different from the trustee of the share of your estate left to those children. Your guardian and trustee should be people that will work together and exercise due care for the benefit of your children.
- Special Bequest
You may leave your estate to nominated beneficiaries, either in whole or in part, or you can leave it asset by asset provided each asset left can be clearly identified.
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