Preparing a legally valid Will during your lifetime allows you to reduce the emotional stress and financial burden often associated with death, and gives you the opportunity to provide for and protect the people you care about after you pass away.
Failure to leave a legally valid Will could result in your assets being distributed according to a fixed formula determined by the law of Western Australia. It is unlikely this formula will reflect your final wishes. This is why estate planning and having a legally valid Will is essential.
1. Issues to Consider Prior to Writing Your Will
Determine What Assets You Own
It is important you consider and formulate a list of all liabilities and assets you have in preparation for the drafting of your Will.
Debts may include mortgages, credit cards or personal loans.
Assets may include property, bank accounts, motor vehicles, cash, jewellery or artwork.
You will need to determine whether you have appropriate ownership of relevant assets in order to be able to include them in your Will. For example, if you own a house as a joint tenant you cannot dispose of this house in your Will if you are the first to die, as it will automatically pass to the surviving tenant.
Who are the Beneficiaries?
When creating a Will you may elect to distribute your assets to whoever you choose. A person, company or organisation you leave your assets to is known as a beneficiary. You can have a single or multiple beneficiaries.
Choosing an Executor
An executor is responsible for administering your estate in accordance with your Will after you pass away. An executor can be a family member, friend, or a professional such as a lawyer, trustee or accountant.
When determining who you will appoint as executor, you should consider whether they:
• have the relevant skills and experience;
• are willing to administer your estate;
• are aware of their legal responsibilities; and
• have adequate time to fulfil their duties.
It is important you choose the right person, as a poor choice of executor could potentially cause conflict or place an additional burden on a friend or family member at a time of stress, grief and loss.
2. Writing Your Will
Every Will is unique and should be tailored to an individual’s specific circumstances and needs. When writing your Will you must comply with various legal formalities, failure to do so may render your Will invalid.
Generally, when writing a Will you must ensure:
• you have testamentary capacity, this means you are over the age of 18 and know what you’re doing;
• your Will contains your wishes in writing;
• the Will is signed and dated with two adult witnesses present.
You may want to consider consulting a qualified lawyer with experience in estate planning to help you navigate any complexities associated with writing a Will.
3. Continue to Update your Will
Major life events such as marriage, purchase or sale of a property, divorce, or the death of a beneficiary, result in a change of circumstances which may not be adequately reflected in your current will. You should review your will every 2-4 years to ensure that it still reflects your wishes. These major life events may also change the status of your will. For example, if you get married or divorced your Will is automatically revoked.
If your circumstances change, we recommend you prepare a new Will rather than creating a codicil. A codicil is a legal document that is used to alter earlier Wills, which often cause problems.
4. Store Your Will Safely
Make sure your store your Will in a safe place and inform your executor or lawyer of the location.
This short article provides general information about the subject matter. We recommend seeking professional legal advice from a lawyer experienced in Wills and estate planning to discuss your specific circumstances
For any help call us on (08) 9335 9877 or complete the form below to request an introductory consultation.