A Will is a legal document that outlines how a person’s assets will be distributed upon their death. While it may seem like a morbid topic, it is an important one to consider. Almost everyone owns some kind of property or asset, and as a result, it is important to ensure that your assets are distributed in accordance with your wishes after you pass away.
Disputes over assets, even those with little financial value, are common. These disputes can be costly and may lead to a breakdown in inter-family relationships. Having a Will in place can help prevent disputes over assets by providing clear instructions on how they should be distributed. This article will explore why you need a Will, and when you should consider creating one.
The Reasons why You Need a Will
The most important reason to have a Will is to ensure that your assets are distributed according to your wishes after your death. If you die without a Will, your estate will be distributed according to intestacy laws, which may not be in line with your wishes. This can cause unnecessary stress and hardship for your loved ones, as well as potential legal disputes.
A Will can also be used to appoint guardians for your children, specify funeral arrangements, and make charitable donations. Without a Will, these decisions may be left to the courts or your family members, who may not be aware of your wishes.
Additionally, having a Will in place can prevent potential conflicts and disputes among family members after your death. When there is no Will, family members may have differing opinions on how the assets should be distributed, leading to disagreements and even legal battles.
Another important reason to have a Will is to name a guardian for any minor children. If you have young children, it is essential to consider who would take care of them in the event of your death. Without a Will, the court will decide who will take custody of your children, which may not be in line with your wishes.
Creating a Will can also provide peace of mind and ensure that your wishes are carried out after your death. It is an opportunity to leave instructions for the distribution of your assets, as well as any specific wishes you may have regarding funeral arrangements, charitable donations, or the care of pets.
If you have specific assets that you would like to leave to particular individuals, a Will can ensure that these wishes are carried out. For example, if you have a treasured piece of artwork that you would like to pass down to your child or grandchild, a Will can ensure that this asset is distributed to the appropriate individual.
Furthermore, creating a Will can also help minimise the tax burden on your estate. With careful planning and the guidance of a legal professional, you may be able to reduce the amount of tax that your estate will have to pay.
When it comes to creating a Will, it is essential to seek the guidance of Seitz & Pepper experienced Wills, Trusts and Estates Lawyers. Our experienced lawyers will help ensure that your Will is legally binding and that it accurately reflects your wishes. They can also provide advice on the best ways to minimise the tax burden on your estate and ensure that your assets are distributed in a way that is in line with your wishes.
Other Estate Planning Tools to Consider
In addition to creating a Will, there are other estate planning tools that you may wish to consider. These include setting up a trust, creating a power of attorney, and establishing an advance healthcare directive.
A trust is a legal entity that can hold and manage assets on behalf of beneficiaries. By establishing a trust, you can help ensure that your assets are managed and distributed according to your wishes. This can be particularly useful if you have young children or beneficiaries who may not be able to manage their inheritance responsibly.
A power of attorney is a legal document that allows you to appoint someone to make financial and legal decisions on your behalf if you become incapacitated. This can be useful in the event of an illness or injury that leaves you unable to manage your own affairs.
An advance healthcare directive, also known as a living Will, is a legal document that outlines your wishes for medical treatment if you become unable to make decisions for yourself. This can include instructions on whether you wish to receive life-sustaining treatment and other medical interventions.
When You Should Create a Will
While most 18-year-olds may not have significant assets or dependents, there are still important reasons to consider creating a Will. For example, if you are in a long-term relationship or have children, a Will can ensure that your assets go to your partner or children, rather than being distributed according to intestacy laws.
Additionally, if you have received a substantial inheritance, it is important to create a Will to ensure that those assets are distributed according to your wishes. In some cases, an inheritance can significantly increase a person’s assets, making a Will essential for effective estate planning.
A Will should also be considered after major life events, such as marriage, remarriage, divorce, or the death of a beneficiary or executor named in a previous Will. These events can significantly impact your estate planning needs, and a new Will may be necessary to reflect these changes.
Finally, it is important to remember that life is unpredictable, and unexpected events can occur at any age. Creating a Will early in life can provide peace of mind, knowing that your wishes will be respected, and your loved ones will be taken care of in the event of your untimely death.
The Process of Creating a Will
Creating a Will involves several steps. The first step in creating a Will is to identify your assets. This includes any property, savings, investments, or other assets that you own.
Next, you will need to choose the beneficiaries who will receive your assets after your death. This may include family members, friends, charities, or other organisations.
You will also need to name an executor who will be responsible for carrying out your wishes after your death. This person will be responsible for distributing your assets, paying any debts or taxes owed, and carrying out any other instructions specified in your Will.
Once you have identified your assets, chosen your beneficiaries, and named an executor, you can begin drafting your Will. This can be achieved with the experienced help of Seitz & Pepper Wills, Trusts and Estates Lawyers.
After your Will has been drafted, you will need to sign it in the presence of witnesses. The number of witnesses required may vary depending on your jurisdiction.
Finally, it is important to store your Will in a safe and secure location. This may include a safe deposit box, a home safe, or with a trusted family member or legal professional.
If you need to make changes to your Will, such as adding or removing beneficiaries or changing your executor, you can do so by creating a new Will or by making a codicil to your existing Will.
The Process of Estate Planning
Creating a Will is just one part of effective estate planning. Estate planning is the process of organising your assets and ensuring that they are distributed according to your wishes after your death. This can involve creating a Will, appointing guardians for your children, setting up trusts, and more.
Effective estate planning can provide a number of benefits, including minimising estate taxes, avoiding probate, and ensuring that your loved ones are taken care of after your death. It can also help to prevent legal disputes and ensure that your wishes are respected.
Estate planning can be a complex process, and it is important to seek the advice of an experienced attorney to ensure that your plan is effective and legally sound. Our experienced Wills, Trusts and Estates Lawyers can help you understand the different options available to you and guide you through the process of creating a comprehensive estate plan.
The Consequences of Dying Without a Will
If you die without a Will, your assets will be distributed according to intestacy laws, which vary by state. In most cases, your assets will be distributed to your spouse or children, or to your parents if you do not have a spouse or children.
However, there are some cases where intestacy laws may not distribute your assets as you would like. For example, if you have a blended family with children from previous marriages, intestacy laws may not provide for all of your children equally. Additionally, if you are in a long-term relationship but are not married, your partner may not be entitled to any of the assets.
Once the Grant of Probate or Letters of Administration has been issued, the executor or administrator can begin the process of distributing the assets of the estate according to the terms of the Will or intestacy laws. This can be a complex and time-consuming process, depending on the size and complexity of the estate.
It’s important to note that the process of administering an estate doesn’t just involve distributing assets to beneficiaries. The executor or administrator may also need to pay off any debts and taxes owed by the deceased, and may need to sell assets to cover these costs. They may also need to deal with any disputes or legal challenges to the Will or the distribution of the estate.
For these reasons, it’s highly recommended that you seek the advice of our qualified and experienced estate planning lawyers when creating a Will or administering an estate. They can provide you with guidance and support throughout the process and help you avoid common mistakes and pitfalls.
Letters of Administration
If you die without a Will or your Will is not valid, then an application for a Grant of Letters of Administration will need to be made to the Supreme Court of Victoria. Usually, it is the deceased’s next of kin who has to apply for this grant, such as the spouse, domestic partner or a child of the deceased.
If the person died and left behind a partner, then all of the estate goes to them. If there were also children from another relationship then some of the estate may also go to those children, but this depends on how much money was left in the estate. This won’t happen unless there was about $500,000 in the estate after all debts and funeral expenses have been paid. Different rules apply if the person left behind more than one partner.
If there were children but no partner, the estate is distributed to the children equally.
If the person had no partner or children, then all the estate goes to relatives in the following order: (1) Parents; (2) Siblings; (3) Grandparents; (4) Aunts and uncles; and (5) Cousins.
A domestic or de facto partner (including same sex partners) may be considered your next of kin when applying for Letters of Administration. For the purposes of Estate Law, you need to have lived in a domestic or de facto relationship for two years, or have a child together, or have formally registered your relationship before your partner can benefit from your estate if you die without a Will.
Grant of Probate
A Grant of Probate or a Grant of Representation allows the executor/s to your Will to effectively stand in your shoes and administer and distribute your estate pursuant to your wishes.
Executors are often charged with planning funerals and cremating/ burying the deceased according to their wishes.
The Grant of Probate / Representation gives the executor or administrator the authority to deal with assets, such as bank accounts, shares and property. It means the assets can be transferred to the name of the executor or administrator so that they can deal with them, transfer or sell them. Without the Grant of Representation, the executor or administrator cannot distribute the assets to beneficiaries.
How to apply for the Grant of Probate or Letters of Administration
An executor can apply for Probate and a next of kin can apply for Letters of Administration, or they can ask a family solicitor to do it for them.
The Supreme Court of Victoria provides a series of steps that must be complied with, including advertising online that you are intending to apply. When you submit your application for Probate / Letters of Administration to the Supreme Court, you need to include the deceased person’s Will (Probate only), death certificate and a confirmation of the estate’s assets. You also need to include an affidavit completed by the executor. The purpose of the affidavit is to prove to the Court that the executor will administer the Estate well and in line with the law.
The Importance of Having a Will
There are many reasons why having a valid Will is important. First and foremost, it ensures that your assets are distributed in accordance with your wishes. You can make specific gifts and legacies by nominating individuals who will receive your assets when you die. For example, you can nominate particular beneficiaries who you would like to receive specific items of property, or sums of money. Without a Will, your assets will be distributed according to the laws of intestacy, which may not align with your wishes.
In addition to providing instructions on how your assets should be distributed, a Will can also include your burial or cremation instructions. This can provide peace of mind to your loved ones, who may be unsure of your wishes.
A Will also enables you to appoint an executor, or person who will be responsible for administering your estate after you pass away. This can be particularly important if you have a complex estate or if you want to ensure that your assets are distributed in a particular way. Without a Will, the court will appoint an administrator to distribute your assets.
Another benefit of having a Will is that it can minimise the risk of a family provision claim being made by a person for whom adequate provision is not made under the laws of intestacy. For example, in New South Wales, if a person dies without a Will leaving a de facto spouse but no children, the de facto spouse is entitled to all of the estate. The deceased’s parents may make a family provision claim as otherwise, they will receive nothing from the estate.
In addition to providing instructions on how your assets should be distributed, a Will can also minimise the risk of family breakdown. Without clear instructions on how assets should be distributed, disputes may arise between family members, leading to a breakdown in relationships. A Will can provide clear instructions, helping to prevent disputes and maintain family harmony.
Finally, a Will can be used to appoint a guardian of any minor children (i.e., children under the age of 18 years) in the event of your death. This can be an important consideration for parents who want to ensure that their children are cared for by someone they trust.
Conclusion
In conclusion, if you have assets of any kind, it is important to have a valid Will in place. A Will ensures that your assets are distributed in accordance with your wishes, provides clear instructions on how your assets should be distributed, and minimises the risk of family disputes. A Will can also provide peace of mind to your loved ones, who may be unsure of your wishes. If you do not currently have a Will, it is important to seek the advice of Seitz & Pepper experienced Wills, Trusts and Estates lawyers, to help you prepare one.
While it may not be at the forefront of your mind when you are young and healthy, creating a Will is an important step in planning for the future. By taking the time to consider your wishes and working with our Wills, Trusts and Estates team, you can ensure that your assets are distributed in a way that reflects your wishes and minimises the burden on your loved ones. It can also help prevent to potential conflicts or disputes among family members after your death.
