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Do I need a Will?

People often ask do I need a Will. The answer is yes unless you are happy for your property and assets to be distributed in accordance with the laws of intestacy. Intestacy is a legal term for when a person dies without a Will. The laws of intestacy contain a formula and a list of people who are entitled to inherit your estate. With a Will, you and not the laws of intestacy determine who will inherit your property and assets.

Benefits of a Will

The first benefit of a Will is that it reflects your wishes and intentions. In other words, you are controlling the situation and not the government. The second benefit in preparing your own Will is that your own Will allows you to structure how your property and assets will be inherited.  

Wills can be inexpensive to have prepared and depending on your circumstances a Will can be relatively simple and straightforward. 

Often in their wills people leave everything to their partner and then to their children if their partner has predeceased them. Some thought needs to be given to who will be the executor of the estate and whether a guardian for the children is necessary.  

However, Wills can also be more tailored to consider the implications of having a blended family, as well as tax planning issues and asset protection for beneficiaries. 

Wills can also be structured to address special circumstances unique to particular beneficiaries and be structured to included life interests, testamentary trusts, protective trusts and special disability trusts.  

How to protect a beneficiary in a Will 

Life interests, testamentary trusts, protective trusts and special disability trusts are mechanisms in Wills designed to protect and potentially provide flexibility for a beneficiary’s inheritance. For example, a testamentary trust incorporated in a Will can provide a beneficiary with tax planning benefits and options regarding the distribution of income and capital from the estate. A testamentary trust in a Will can also protect an inheritance from creditors and maybe matrimonial or relationship breakdowns.

Can I use a will kit or an online Will?

For a Will to be valid it should be in writing, signed and witnessed by two independent adults. 

The best practice is the witnesses should not be beneficiaries. This is to avoid an argument that the beneficiaries may have influenced the testator or person making the Will.

The other critical element of any Will is that there is a certainty. As you would expect the drafting and interpretation of Wills have evolved over hundreds of years. What you may think is clear and unambiguous may not be. For example, a statement such as I leave everything to my children may seem clear. But what if there are children of different relationships or stepchildren. With a blended family or children from different relationships the statement “all my children” may not be so clear.

Also, many people do not realise that not all assets are actually part of your estate. 

Superannuation is not an estate asset similarly family trusts and other legal structures may not be part of your estate. With proper estate planning, it is necessary to look at the entire picture and all your assets to ensure your wishes are in fact achieved.

Can I leave someone out of my Will?

As a general statement, a person needs to make provision in their Will for their partner and children. 

However. life can be more complicated than that:

  • People can be separated but not divorced and may have already done a property settlement.
  • Children can be estranged. 
  • You may have raised and supported stepchildren.

In circumstances where you wish to exclude a person from your Will, it is necessary to examine the history and reason for that decision. Strategies can be put in place to reduce the likelihood of a challenge being made to your Will. Where a challenge is made the right strategy will decrease the chances of the challenge being successful.

Conclusion

Don’t leave your estate planning to chance. Wills are important, they give you the opportunity to control how your assets are inherited and who will inherit them.

If you need advice or would like to know more about estate planning, we can help. Contact Lord Commercial Lawyers on 9600 0162, email us at info@lordlaw.com.au or fill out the form on this page.

About us

Lord Commercial Lawyers is a commercial and business-focused law firm based in the Melbourne CBD. We work with businesses and individuals to help them achieve their legal and commercial goals

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