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What is a Will?

A Will is a formal document which sets out your directions for the administration and disposal of your assets and property upon your death. It is essential to have a current Will in place that records your wishes so that your assets such as your house, land, car, shares, bank accounts and insurance policies are distributed in accordance with your wishes. Any person eighteen (18) years of age or older and of sound mind can make a Will. The person who makes the Will is called the “Testator”.

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What Happens If I Don’t Have a Will? (Intestacy)

If you don’t have a Will when you pass away, you are said to have died “intestate”. The courts will refer to the Succession Act 1981 (‘the Act’) to decide who will receive your assets. Under the Act, your assets will be distributed according to a rigid formula set down by the laws of intestacy. These laws may:

  • Force the sale of the family home or other family assets so other beneficiaries can claim their share of the assets;
  • Not provide future financial protection for your children or grandchildren or any other dependent;
  • Leave incapacitated family members without adequate support or financial security; and/ or
  • Give your assets to the government if you have no relatives.

Furthermore, you will have no say in who administers your estate or who may be appointed guardian of your children if they are under eighteen (18) years of age. If you do not have a Will, any family member may apply to the court for letters of administration, giving them the same powers as executor of your estate and the right to legally administer your estate at their discretion.


Executors Role

An executor is a person you appoint to deal with and dispose of your assets in accordance with the instructions contained in your Will. It is important to select someone who you trust and who has an understanding of legal and financial matters so they can properly administer your estate. In most cases, the executor will be entitled to a commission for the work required to administer the estate. The executor, in effect, steps into the deceased person’s shoes and winds up the deceased person’s personal affairs. Some tasks usually performed by an executor include:

  • Locating the Will;
  • Arranging the funeral;
  • Applying for Probate;
  • Obtaining a death certificate;
  • Informing investment bodies of the death;
  • Locating family and beneficiaries;
  • Locating and assessing the value of assets;
  • Paying debts, income tax and funeral expenses;
  • Transferring assets and paying stamp duty; and/ or
  • Distributing estate assets to beneficiaries.

Your executor may require the assistance of a solicitor to deal with the duties and obligations involved in the administration of your estate, to which end we can assist. Alternatively, you may choose to nominate Ramsden Lawyers as a professional executor to administer your estate in an independent, efficient and professional manner.

Nominating an Executor in Wills

You can nominate a maximum of four executors to act under your Will, however you should ensure you also obtain each executor’s consent before making a nomination. Your executor can also be a beneficiary. In selecting your executors, you should keep in mind the following:

  • If you intend to leave the majority of your assets to a single person, such as your spouse, then usually that person should be nominated as one of your executors;
  • You can nominate an independent person, such as a friend or advisor, who you trust to act as co-executor if you wish. It will be the responsibility of both executors to work together in this situation;
  • Consider the executor’s age before nominating them, especially if you nominate an executor who is likely to pass away before you. If you nominate someone older than you, you should also consider nominating a substitute executor.
  • You should also consider having substitute executor(s) if a nominated executor cannot act for some reason. For example, the complexity of administering the estate might be too complicated or your primary executor may no longer be available.

Wills & Beneficiaries

Beneficiaries are persons who will receive your assets in accordance with the instructions and proportions set out in your Will. They usually include your spouse or de facto partner and any children. You may divide your assets in any way you see fit. For example, you may wish to give children and step-children assets in percentage form, with one beneficiary entitled to a greater interest than the other. Alternatively, you may wish to divide your assets into equal shares. However, it is important to note that there are a number of risks with not providing adequate provision for certain people under you Will.

You may also elect to provide specific gifts, such as your jewellery, house or car to particular beneficiaries.

Trusts can also be set up for any children or step-children so that assets will only be passed to them when they reach a specific age.


Preparing Your Will

The following things should be considered when preparing your will:

  • Who will be the executor(s)?
  • Who will be the beneficiaries?
  • What are your current assets and liabilities, and how would you like them distributed?
  • Do you wish to have particular assets transferred to the beneficiaries rather than sold?
  • Who will take care of your children upon your death?
  • Do you wish to be buried or cremated?
  • Is there any special requests for your funeral or headstone?
  • Would you like to set up a testamentary trust to provide for your children and grandchildren and minimise tax liability for them?

As your Will is an essential legal document, it is crucial to ensure all the details of your beneficiaries are correct.

If I Get Married or Divorced, Does That Affect My Wills Circumstances?

If you marry after making a Will, the Will is generally revoked (i.e. cancelled) unless it was made in anticipation of marriage. Conversely, if you divorce after you make your Will, it revokes any gift to a former spouse and that spouse’s appointment as executor, trustee or guardian in the Will. However, this will not apply if the court is satisfied that the Will maker did not intend to revoke the gift or appointment by divorce. If you wish to alter your Will or your marital circumstances change, you should seek the guidance of our expert Wills and Estates Team to advise you accordingly.

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As Your Solicitor

As your solicitor, our team will ensure your Will is drafted for your specific circumstances and correctly executed. We can also hold your Will and other testamentary documents in our secure safe custody system so your executor(s) can easily access them when needed. Our team can assist with updating or making your new Will for you when your circumstances change.

Old Wills

It is important to know the location of old Wills to either collect or destroy them or inform the holder that a new Will has been made and their services are no longer required.

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