Put simply, a Will is a particularly important legal document that will protect your assets and family after you pass.
In a Will, you can name an executor, or executors, to administer your estate; a beneficiary, or beneficiaries, to distribute your estate to; and a guardian, or guardians, to look after your children in the event of your passing.
An executor is a person named in your Will to administer your estate upon your death. After your passing, an executor effectively “stands in your shoes” as your legal personal representative. As such, when it comes to dealing with your estate they perform a very important role.
Perhaps the most important role played by your Will is to specify how and to whom your property is distributed upon your death. For most people, the primary focus of their gift giving is to ensure that their loved ones are adequately provided for in the event of your passing. Bestowed gifts generally fall into two categories:
- Specific Gifts – particular item/s to be given to specific person/s or group; and
- Residuary Gifts – the residue of your estate, being what is left after all liabilities have been paid and all specific gifts have been distributed.
There is a wide range of other matters that can be covered by a valid Will aside from dealing with how particular assets are distributed. For example, a Will can specify your wishes concerning who you wish to act as a guardian of your children in the event you pass away.
This can be a very powerful expression of your intentions regarding the way your children are cared for, and by whom, in the event of your death. Your Will can also state how your funeral arrangements are made and carried out and whether you wish for your organs to be utilized or donated in a particular way on your passing, noting it is best practice to also formally register for organ donation separately.
If you die without a Will, you will have been deemed to have died ‘intestate’. This particular situation means that there is a risk that your estate may be distributed to the wrong people and in the wrong way.
Dying intestate may result in a range of adverse outcomes such as having an executor by the Court, noting that Courts generally have a broad discretion as to whom to grant administration.
It may also lead to increased time and financial costs to finalise your deceased estate and create additional burdens for loved ones at the time of your passing given lack of certainty associated with your final wishes.
There are unfortunately many things that can render a Will invalid. There are a number of questions you need to ask yourself to identify if your Will can protect you after your death:
- Does my Will contain page markings, removed staples or binding?
- Is my Will witnessed by a beneficiary or executor?
- Did I use a DIY Will Kit?
- Have I forgotten to get a letter of testamentary capacity?
- Was the last time I updated my Will longer than 3 years ago?
- Have I or my loved ones since been through a marriage, separation, death or childbirth?
- Is my Will improperly signed and dated?
- Have I since acquired or disposed of any assets including property and inheritance?
- Do I have the wrong executors in place?
- Have I forgotten to put in a clause protecting the guardianship of my kids?
- Have I forgotten to use the full and accurate names of executors and beneficiaries?
If you have answered YES to any of these questions, your Will needs to be updated.