- Posted by: borderlawadmin
- Category: Family Law, Wills
A will is your instructions to the people you have appointed to distribute your assets to those whom you want to benefit.
It is intended to be your last word but unfortunately, the Courts can and do interfere and change your instructions (at the request of your family who feel unfairly affected).
But failure to make a will can create problems for your spouse and family not to mention unnecessary extra costs.
It is therefore necessary to understand why you need one and what you can and can’t do with wills.
Why do I need one?
If you don’t have any assets then you don’t need a will. If you have any more than around $10,000 in the bank or own real estate or shares then you will need a will.
If you do not have a will then your spouse/partner and children may not get what you may have wanted them to have (see below).
What happens if I don’t make a will
If you have reasonable assets and do not leave a will (it’s called dying “intestate”) then your family cannot simply take them over. Someone will need to make an application to the court for authority to collect up your assets and pay your creditors.
Once they have that, they cannot simply pay out to whomever they please. When you have not specified who is to receive, the law takes over and dictates who can be paid.
For example, if you have a spouse/partner and children then the order of distribution is:
- Your spouse gets all your chattels, plus up to $121,500 of any cash
- Of what’s left (the “residue”), the spouse gets 1/3 of the balance of your assets
- Your children get the other 2/3 of the residue.
There are variations on this depending on whether or not you have a spouse/partner/children/parents etc. So, it can be seen that having a will certainly simplifies things.
Another example of problems is if you made a will leaving all to a previous partner, have long since separated and not made another will then your estranged partner will still be able to claim under the old will. If when you die, you are in a new long term relationship it takes little imagination to see there will be some protracted and expensive arguments over who is entitled to the estate. (NB – If you were legally divorced from the prior spouse then they can make no claim.)
What does the will do?
It is basically your instructions to a nominated person called (the executor) to deal with your assets in accordance with your instructions.
To make sure that your executor is properly appointed the will needs to be filed in the High Court and approved as your final instruction. This is called obtaining “probate”. Effectively it is the courts’ seal of approval on the will and the authority the executor needs to deal with your assets. If they go to a bank to deal with your money they will require him/her to produce the probate. Similarly, for dealing with your real estate assets.
What does the executor do?
The executor simply collects up your various assets, pays your bills and then distributes the surplus to the people you have specified are to receive them.
What do trustees do?
If you have left a gift (sometimes called a “bequest”) to someone who is under age, for example your children, then the money will go to a trustee and they will administer it until the beneficiary reaches to age of 18 or whatever age you have specified. You would specify in your will who the trustee will be. Usually it is the same person as the executor but they can be different people.
Can I do what I like with my assets?
In theory yes, but in reality the law imposes certain obligations on you which you cannot ignore. For example you have a duty to provide for your spouse/partner and dependent children. If you leave everything to say, the cat home, then the court (through your spouse) will intervene and make that provision.
Likewise if you made certain promises to family members or even non-related people that you would look after them in your will in return for some service from them during your lifetime, and then forget to do so, they can make a claim and if it is substantiated, the court will enforce it.
How do I make a will
Wills need to be very clear and there are centuries of case law on what is meant by certain words and phrases. It is best therefore to engage someone who knows what they are doing rather than try to “knock up something on the back of an envelope’.
What Information is required
To prepare a will then in simple terms we will need to know who you want to appoint as the executor/trustee, what assets you have and who you want to give them to.
The above advice is necessarily a brief over view of some of the main issues. It does not mention all the applicable law. You must take legal advice that is tailored to your specific circumstances before making any decisions.