Wills and Enduring Powers of Attorney
Preparing a Will
A Will is one of the most important document that most of us will ever sign. It determines how our property is distributed upon our death. What we say in our Will is often the last thing that we say to our loved ones and the final way that we can go about helping our loved ones. Having a Will in place which states clearly how you want your assets to be distributed upon your death, allows for peace of mind for both you and your loved ones.
Executing a Will properly
It is important that your Will is clearly written and that it does what you intended it to do. Care must be taken to ensure that Trust property, including in Self Managed Super Funds, passes in accordance with your wishes. It is important to consider documents such as trust deeds for Self Managed Super Funds and Family Trusts when preparing a Will.
Your execution of the Will should be witnessed by two people over the age of eighteen who are not beneficiaries under your Will. The law has been changed now to allow Wills which have not been correctly executed to be admitted to probate, but that can be an expensive process and it is best to ensure that your Will is executed properly in the first place.
Things that do no form part of your Estate
You may be surprised about important things that are not/cannot be passed according to your Will. Homes owned by couples as joint tenants do not pass by the Will, but rather pass directly to the surviving joint tenant under the Property Law Act. Also, you may be surprised to know that you do not own the entitlements which you have in your superannuation fund and you should discuss with your solicitor the best way you can ensure that your superannuation benefits are passed to those people you want to benefit.
Property held within trusts cannot be passed according to your Will, but you can pass the control of the trust in your Will.
If you have companies, trusts or self managed superannuation funds, it is important that you provide the company constitutions and trust deeds to your solicitor, for your solicitor to consider such documents when preparing your Will.
Avoiding Will related issues
Not only does your Will need to be correctly written and executed but it is important that your solicitor considers issues such as your capacity to make a Will and possible claims which give rise to others contesting your Will. If there could be an issue regarding your capacity to make a Will, then it is important for your solicitor to obtain and preserve evidence regarding your capacity. It is also important for your solicitor to discuss possible Family Provisions claims with you and to preserve evidence from you, which supports your wishes.
Guardianship of young children
You may wish to include clauses in your Will for the guardianship of your children in the event of the death of you and your spouse.
Enduring Powers of Attorney
An Enduring Power of Attorney is also an important document. Such document allows for the appointment of a person or persons, who you trust to make decisions for you, including financial and/or personal, and health decisions, in circumstances when it may be necessary.