As the old saying goes ‘….nothing can be said to be certain, except death and taxes’. While it’s not a pleasant thought, it does warrant some reflection. You wouldn’t ignore your taxes, so why ignore what you would like to happen in the event of your death? Having an up to date will ensures that, in the event of your death, there will be no ambiguity around your estate. This will minimise time, expense and potential emotional anguish involved with finalising your estate.
If you don’t have a will, you are considered to have ‘died intestate’. If this happens the process of dividing of assets will be drawn out, especially if multiple people want to make claims to your estate.
There are a few vital terms and actions that you should take to minimise ambiguity at the time of death:
In a will you can list beneficiaries, the people or organisations that you wish to receive your nominated assets. You can divide assets between beneficiaries as you wish. It is a requirement to provide for any dependents you have such a s a spouse or children. They can contest the will if not properly provided for. If there aren’t any people you wish to leave assets to, then an organisation, such as a charity can receive them. Assets can include property, money in bank accounts, shares and superannuation.
An executor is the person that you nominate to administer your will. Before the distribution of assets, they’ll have to organise that any outstanding debt you had is paid in full. The executor needs to be a reliable person that will likely be available to take care of the administration. While there may be family members that would seem like the likely candidate, it is important to consider additional emotional pressure this may place on them on the time of your death. For this reason, you may want to consider an independent executor.
For a will to be administered it may require probate, the official recognition of the will. This isn’t always required, especially for estates of a low value. They are usually a requirement if property is involved. The executor may need the assistance of a solicitor to navigate the probate process.
Keep it up to date
Revising your will is as important as having one in the first place. If circumstances of relationships change and as such you want to change the beneficiaries of your will, it needs to be recorded and witnessed. If you marry, have children or come into significant wealth, you should update your will. If you have children your will can also stipulate who you wish to be their guardians in the event of your death. Again, any changes will need to be signed and witnessed by two people.
Power of Attorney
Separate to your will, you can appoint people as a power of attorney. A power of attorney is given the right to make decisions for you when you are incapable of doing so. These may be medical, financial or legal. Ensure that your power of attorney is informed of your wishes through proper documentation, such as a living will. A power of attorney document needs to be witnessed and signed by the person you appoint. An enduring power of attorney can make financial and legal decisions for you, but not any regarding health or treatments. If it is deemed that you have lost the capacity to administer your affairs, the enduring power of attorney will have the authority to handle financial and legal matters. A solicitor needs to prepare the documentation for an enduring power of attorney and it needs to be registered
The original will document should be stored safely. The executor should be aware of where it is being stored. Solicitors are also an option for will storage, minimising risk of loss or damage.
CM Lawyers have a team of experts that can help you with organising your will, or dealing with estate administration, probates or dispute.