Should I have a will?

The simple answer to this question is ‘yes’, you should have a Will.  While the law makes provision for what happens to your assets if you die without a Will (called an intestacy), it may mean that your assets are not distributed to the person/s you would have chosen and the distribution of your assets may be made by someone you wouldn’t have chosen.

If you die without a Will and your assets pass according to the rules of intestacy, a family member that you never intended to benefit from your estate may do so.

Having a Will leaves your family in no doubt of your intentions for the distribution of your assets and thereby avoids unnecessary conflicts within the family after you die.

Who can make a will?

You must be 18 years or over to make a Will.  You must also have “testamentary capacity” to be able to make a Will.  This means you must:

• know what a Will is, that it is a document that sets out what happens to your assets after you die;
• know generally what assets you have and their approximate value;
• understand and be able to make a decision about which family members and people it is reasonable to leave your assets to;
• not suffer from a condition which prevents you from being able to make a rational decision about who to leave your assets to. 

What you should think about before making a Will?

• Who you want to give your assets to.  You can leave your assets to whoever you choose.  This includes charities and not for profit organisations.
• It is important to consider which people depend on you for their proper maintenance, education and advancement in life.  If you don’t make provision for these people, they may be able to take legal action after you die to get a share or a larger share of your estate.  This is called a Family Provision Act claim.
• How you want your assets distributed.  That is, do you want everything sold and then shared between your beneficiaries or do you want to give specific assets to individual beneficiaries? Specific assets could include your jewellery, paintings, books or even your house, car or shares.
• Who you want to have the responsibility for carrying out the distribution of your estate. This person is called an executor.  You should choose more than one person in case one of those chosen is unable to act as an executor.  An executor should be someone who:
  • you trust;
  • is likely to outlive you;
  • has some understanding of your assets;
  • will have time to manage the distribution of your assets; and
  • will be impartial if there is a dispute.
• If you have children, who you would want to be their guardian and at what age you wish them to receive their share of your estate.
• If you wish to leave a share of your estate to someone with a disability, an addiction, someone at serious risk of going bankrupt or having their marriage fail or with some other special need, provisions can be made to set out how their share of your estate should be managed so that they are properly cared for after you die.

This short blog is intended to provide a general guide to the subject matter. Professional legal advice should be sought about your specific circumstances before commencing any course of action.