Estate Planning – Basics – What is a Will?

At Adams & Partners we can answer all of these questions and are here to help make the estate planning process as easy as possible.

What is a Will?
The Will we are talking about has nothing to do with Will Smith or William Wallace (even though those Will’s may be slightly more interesting). A Will is a legal document which sets out what will happen to your possessions and property when you die.

By creating a valid Will you can determine where your assets will end up upon death. It is recommended that you should create a Will if you have family (including just a spouse or de-facto partner) or if there are other people who are financially dependent on you (adult children, elderly parents, etc).

Is my Will valid?
In NSW, a Will generally needs three things to be valid and to be admitted to Probate. These three things are:
1. It must be written (this includes handwritten, printed and typed).
2. It must be signed, and
3. Your signature must be witnessed by two other people who also need to sign the Will.

However, if a Will does not abide by all of these three requirements the Will may not be valid. This depends on the circumstances and factors of each case but proving the Will becomes more complicated. It is advised though to abide by these three elements when possible.

What happens if I die without a Will?
If a person dies without leaving a valid Will they die “intestate”. A partial intestacy can also arise when the Will fails to dispose of all of your (the deceased’s) property. In circumstances of an intestacy a customary formula is used to distribute your property and possessions. In an easy case, your assets will pass to your spouse or children. However, what you might think is easy and what the NSW Supreme Court may deem is easy are two separate issues.

The situation can become much more complex if you have children from different relationships or if you die with no spouse and no children. Generally, getting married cancels the terms of any Will which you created before the marriage, although there are exceptions. You should always make a new Will if you marry, divorce, or if you’ve been separated for a long time. Without a Will only direct family members can inherit from you if there is an intestacy. So, having a lawful binding Will is incredibly important if you wish to leave differing gifts to friends or charities.

Who can I leave my assets to?
You can leave your possessions to whoever you like, but the Court will enforce a general obligation for you to provide adequately for your spouse or de facto partner, your children, and any other dependents. If you don’t they will be able to bring a claim against your estate, which can make the Probate experience messy (not that you will be around to deal with it, but think of your Executor!)

What in the heck is an Executor?
When you create a Will you will have to appoint an Executor and Trustee, who will handle your affairs when you die. People usually choose one person to perform both roles although you can name as many Executors as you like, however multiple Executors usually complicates the matter. The Executor’s role is to obtain Probate, pay your debts, and distribute your assets as stated within your Will.

A Trustee Will manage any trusts which you set up in your Will. This typically happens when you leave assets to people under the age of 18 (usually children or grandchildren). Before you nominate someone as an Executor or Trustee, you should make sure they are comfortable taking on this obligation.

Can I change my Will?
You are able to change your Will as many times as you want! You should always change your Will when your circumstances change such as, if you divorce or remarry, or if one of your beneficiaries dies. However, you can’t just make an alteration to your Will by crossing something out and writing something different. Where you want to make a minor change to your Will, you will need to make a Codicil which is an authorised amendment to the Will. A Codicil applies by the same rules as a Will though which means it does need to be in writing and signed and witnessed by two people. Where you wish to make a major change to the document, you are usually best off starting a whole new Will.

Where should I keep my Will?
You should always keep your Will in a safe place and let your Executor know where you’ve put it. If your Will is lost and no one can find it, it won’t be effective. It is best to keep your Will in a place that has suitable conditions for a document to survive. We have facilities at Adams & Partners Lawyers which allow you to store your documents in a safe and protected environment.

I get what you have said, but my mate Steve doesn’t have a Will. He says they’re pointless, why pay for a document that I will never use?
You can buy a basic Will kit from a newsagent which can offer you basic testamentary protections. Or you can come and see an expert which will help determine what needs to be included in your Will, so that your intentions are complied with. Remember this is a document that your much-loved family and friends will have to deal with relatively soon after your passing. This can be an extremely emotional time for all of them, so why not make the process as easy possible? Come in and have a chat and bring Steve. We will be able to help you both out, it’s what we do at Adams & Partners.

Cameron is an up and coming young lawyer who started with Adams & Partners Lawyers in 2017.