A will is a legal document which sets out who’ll receive your property and possessions when you die.
When you have a valid will, you give yourself the best chance of making sure your assets go where you want them to. So you should always make a will if you have a family or if other people are financially dependent on you.
Some people choose to make their own will. We believe that this is a mistake. Although writing your own may seem easy enough, the law around wills can be complex.
When you make a homemade will, you risk not drawing it up properly or not expressing your intentions clearly enough. It’s also easy to create a tax liability which your beneficiaries will have to pay. Finally, a DIY will is more likely to be contested, which means the whole process of giving away your assets could end up in court.
That’s why, when you make your will, it’s important you have it drafted by someone who understands the law and can advise you on the best way to make sure your assets end up where you want them to. And that means engaging a solicitor.
A will generally needs three things to be valid:
But even where you’ve met these three requirements, your assets can’t be distributed immediately. Sometimes, a court needs to grant probate first.
If you die without a valid will (known legally as ‘dying intestate’), a standard formula is used to distribute your property and possessions. Usually, this means all your assets will pass to your spouse or children.
But the situation becomes much more complex if you have a legal spouse and a de facto spouse (i.e. you’ve separated and have a new unmarried partner), if you have children from different relationships, or if you die with no spouse and no children.
The court’s formula usually also only lets your family members inherit from you. So having a valid will is vital if you want to leave gifts to friends or charities.
You’re free to change your will whenever you like. And you should always change your will when your circumstances change – for instance, if you divorce or remarry, or if one of your beneficiaries dies.
But you can’t just change your will by crossing something out and writing something different.
Instead, where you want to make a minor change, you’ll need to make a codicil – which is effectively an authorised amendment to the will. As with a will, a codicil needs to be in writing and signed and witnessed by two people.
Where you want to make a major change, you’re usually best off making a whole new will.
An enduring power of attorney enables you to appoint someone to look after your financial and/or personal affairs (including health care). It is important to appoint someone you trust.
If you lose the ability to make decisions for yourself and you do not have an enduring power of attorney, the Guardianship and Administration Tribunal may appoint someone to act on your behalf. This could be the Public Trustee, another Trustee Company, a family member or a friend.
Making an enduring power of attorney enables you to choose who will act for you if you lose the ability to make your own decisions.
Many people focus on planning ahead for their financial and business affairs by making a Will and a Power of Attorney but do not consider what will happen if they find themselves unable to make lifestyle and medical decisions due to illness or accident.
An Enduring Guardian is someone you appoint to make lifestyle, health and medical decisions for you when you are not capable of doing this for yourself. Your Enduring Guardian may make decisions such as where you live, what services are provided to you at home and what medical treatment you receive.
Enduring Guardianship only comes into effect if or when you lose capacity and will only be effective during the period of incapacity, therefore, it may never become operational. However, it is a good way to plan for the future, particularly for unforseen situations.
An Enduring Guardian and Enduring Power of Attorney are complementary documents. They can be made separately or together giving you the choice as to who you want to have the authority to make decisions across all areas of your life, if you are unable to make these decisions for yourself.
