A Will is a legal document that outlines who will receive your property and possessions when you die. By drafting a Will that is valid, you give yourself the best chance of ensuring your assets go where you want them to. Creation of a valid Will is an especially important consideration if you have children or other people who are financially dependent on you.
Do I Need a Will?
Here are 5 good reasons to answer, ‘yes’ to the question ‘Do I need a Will?’:
- Help determine who looks after your dependent children: if you have dependent children and want a specific family member or friend to take care of them, but that person is not your next of kin, you’ll need to designate them specifically in your Will. Otherwise, their care may be placed with a blood relative you may not have chosen. Also you can make specific financial arrangements for the children’s care and maintenance.
- Ensure family members are taken care of: dying without a Will runs the risk of your closest loved ones being left in difficult financial circumstances, enriching distant or estranged members of the family instead. A properly drawn Will ensures that your estate passes to beneficiaries of your choosing, in the manner of your choosing, and that your estate will be administered by a person of your choosing.
- Funeral instructions: you can provide details for funeral arrangements and whether you would like to be buried or cremated. Without these, a larger portion of your estate may go towards paying for arrangements you didn’t want, instead of it going where you would have wanted it to go, such as to your partner or children.
- Keep your business running: your Will can protect any business you own, or family business, by ensuring that there are people in the right positions to continue while your estate is in administration.
- Tragic accidents happen: unfortunately, death can strike at the most unexpected times. Therefore, making a Will is important even if you’re in your 20s or 30s. Especially if you have a spouse, children, own a business or have significant assets. Remember almost every worker has superannuation, which often includes life insurance which can be significant.
Your Will also allows you to make a gift (bequest) of any possessions and money you leave behind, once you pass away. It can be made to any individual or organisation of your choosing. Many people choose to leave a bequest to a charity, for example.
Why Make a Will?
If you die without a valid Will in Victoria, the intestacy rules under the Administration and Probate Act 1958 (Act) determine how your assets are to be distributed. Usually, this means all your assets will pass to your spouse. If you do not have a spouse, the order of relatives who are eligible to inherit is generally as follows:
- Aunts and uncles
Note that this is a simplified list, and that the intestacy rules under the Act are complex, and the actual division is determined by reference to your family circumstances at the time of your death.
If you die without a Will and without eligible relatives, your estate will pass to the State of Victoria. The intestacy rules usually only let your family inherit from you, so having a valid Will is crucial if you want to leave gifts to friends or charities.
Drafting a Will
When drafting a Will, you will need to appoint an executor who will handle your affairs when you die. To ensure it is valid, your Will must be:
- In writing (whether handwritten, typed or printed)
- Signed by you
- Witnessed by two other people who also need to sign the Will.
Sometimes, a court needs to grant Probate before your assets can be distributed. This involves the legal authorisation for your executor to manage your estate.
Changing Your Will
There is no issue in changing your Will whenever you like. In fact, you should always change your Will when your circumstances change. For example, if you divorce or remarry, or if one of your beneficiaries dies. Any minor changes (which may be done by a simple additional document known as a codicil) still need to be in writing and signed and witnessed by two people. If you want to make major changes, its often best to make a whole new Will.
Can I Write My Own Will?
While drafting a Will yourself is possible, it’s a good idea to involve an experienced probate and estate administration lawyer whenever you want to make changes to your Will or draw up a new one. Your solicitor can offer advice on your rights, obligations and the best way to disperse assets, as well as make sure your Will is valid and properly drawn up, signed and witnessed.
Probate & Estate Administration Lawyers in Melbourne
For help drafting a Will or for detailed answers to questions like ‘why make a Will?’, ‘can I write my own Will?’, and more, contact the team at McNab McNab & Starke. Our extensive team of probate and deceased estate administration aawyers can offer advice and personalised services:
Contact us today by calling the team on 03 9670 9691 or using our online contact form.