Are you prepared for the future?

By Tracy Pratt, Lawyer at Hillhouse Legal Partners
| 12 min. read

Key takeaways

  • Having a valid Will ensures your wishes are carried out after you die – from how your funeral is conducted to what you want done with your assets.
  • It is important you appoint someone you trust as the Executor of your Will, as they will be responsible for ensuring your wishes are carried out, as well as a range of other legal duties, obligations and responsibilities.
  • While there are plenty of DIY Will kits available, if you use such a kit there is the risk that the legal effect of your Will is different to what you intended, as there are special rules, words and phrases that apply to Wills.

When you pass away, the reality is that it will be left to your family and loved ones to organise your funeral while they are going through a very emotional time themselves.

So, it is important they have a clear path to ensure your wishes are carried out, both in relation to your funeral arrangements and your estate.

The best way to ensure this is done is for them to have access to your Will. If you don’t have one, they will be left to guess at what your wishes would have been, or the law will impose obligations as to what will happen.

When your Will is being drafted, you have the chance to be very specific about what you want done for your funeral - from the flowers to the music, where it should be held and whether you want to be cremated or buried.

Just as importantly, your Will also sets out what you want done with your estate, including who should receive any property or assets and any worthwhile causes to receive money.

Saturday, August 8, is Dying To Know Day - an annual day of action dedicated to starting conversations and community actions around death, dying and bereavement, so it is a perfect time for each of us to take stock of how prepared we are for the future and how Hillhouse Legal Partners can help you and your family. 

Who looks after my Will when I die?

The person responsible for ensuring your wishes are carried out under your Will is the Executor.

The Executor has a wide range of duties, obligations and responsibilities imposed on them by the law, to ensure they are accountable to the beneficiaries of your Estate. They can be personally liable if they act contrary to their obligations under your Will or under the law.

From time to time, someone will argue that a Will is unfair or they deserved to or need to receive more.  It is the Executor’s responsibility to respond to these claims in a way that complies with the law.

The Executor should be someone you trust as they have many obligations and responsibilities, including:

  • Ensuring your Will is complied with.
  • Ensuring the law is complied with.
  • Ensuring timeframes are complied with.
  • Keeping appropriate records.
  • Seeking help when needed.
  • Ensuring all debts and taxes are paid.
  • Ensuring your estate is distributed correctly. 

It can be a difficult job, especially when the Executor is someone close to you and they are trying to ensure your wishes are carried out while coping with their own grief. In these instances - or where estates are particularly complex or problematic - we strongly suggest the Executor seeks the advice of legal experts who will guide them through the process and carry some of the burden.  Hillhouse are here to assist.

It is also advisable to seek legal advice where there are multiple claims on your estate or where your wishes cannot be carried out for some unforeseen reason.

Once we help with creating your Will, we will often be able to hold it for safekeeping. That means your Executor will know exactly where to find it and who to ask for help if they have any questions.

It is vitally important you take the time to carefully review the provisions of your Will and who you have appointed Executor, to ensure it reflects your current situation.

What if I don’t have a Will?

If you die without a Will, there is no guarantee your wishes will be carried out.

The law of intestacy will decide who gets your estate.  If you have a lot of assets to be distributed, family members who you have had no contact with for years could successfully apply to share in your estate. 

A former partner, who has not been a part of your life for many years could obtain some or all of the estate over people you wish to obtain your estate. That might result in your family finding themselves in a difficult and unexpected legal position and your former partner or de facto partner securing a share of your estate – or even all of it.

Other possible consequences of not having a Will include your money not going where you would have wanted. For example, you might be passionate about saving the environment and want some or all of your estate donated to an environmental cause or charity – without a valid Will and an Executor controlling it, there is no guarantee this will happen.

This also extends to your wishes in relation to your health and finances in the event of a serious accident, injury or illness.

In these instances, it is important to have an Advanced Health Directive which specifically states your wishes about life support. Without an Enduring Power of Attorney and/or Advanced Health Directive, people to whom you were not particularly close could end up making life and death decisions on your behalf.

We also very strongly recommend you have an Enduring Power of Attorney who becomes responsible for your Estate and making financial and personal/health decisions on your behalf if you lose your mental and/or physical capacity.

If you ever plan to travel overseas after you have a valid Will in place, we strongly advise you ensure it is updated before you leave the country, conferring General Power of Attorney to someone you trust.

At what age should I make a Will?

If you are over 18 you should have a will.

When you are young, it can be very easy to shrug off the idea of having a Will. After all, the total sum of your Estate might be a second-hand car and the income from a part-time job.

But if your employer is putting money into a superannuation account for you, then you probably have a substantial estate. This amount is not just the money in your superannuation account but also possibly a death benefit or life insurance under the super policy, which could be worth a lot of money. 

Your Estate also includes any money in your bank account, so it all adds up.

Once you have made your first Will, you need to ensure it is regularly reviewed and updated to reflect changes in your situation such as a marriage, divorce, deaths or births.  If you have children you should definitely have a will. 

Should I buy a DIY will?

There are plenty of DIY Will kits available but I would warn you of the dangers of drawing up a Will using a DIY kit.

The same goes for simply updating your existing Will without legal advice.

When you draft Wills by yourself without advice, you are preparing a legal document without the knowledge and understanding of the legal meaning or effect of the words that are used or just as importantly, you don’t use or omit words that should be used.

When you edit or update an old version of your Will without legal advice, you run the risk of making incorrect amendments so that your wishes are not given effect or are wrongly implemented. For example, there may have been significant changes in the law that will not be reflected in your Will, so your beneficiaries won’t have the benefit of those changes.

Ambiguous drafting in DIY Wills can lead to confusion. Despite your best intentions, if the incorrect terminology is used, it may be difficult to interpret your meaning of your will, and your wishes may not be affected.

A court application for a ruling of interpretation of a Will can be costly to your estate and your beneficiaries, and can delay the distribution of your estate and can put stress on the Executor, who may be your spouse, child or sibling who is already grieving your death and dealing with the consequences of your death.

Why should I use a solicitor to draw up my Will?

A solicitor taking your instructions, understanding your situation and drafting your will ensures your will reflects your wishes, complies with the law and is correctly drafted, signed and witnessed.

People often think their situation is straight forward. Even supposed normal situations can be complex.  Even if your asset structure is simple, think about your family situation and what would happen if you were not there to keep the peace.

Family dynamics add a level of complexity that is often not appreciated or only comes to the surface after the death of a family member.

We can advise on who has the right to bring a claim on your Estate, what they have to prove to bring a successful claim and what evidence can be established now, so that if a claim is brought your Executor is ready for it.

We can also address why you have left a certain person out of your Will, or why one child is receiving less (or more) than the other children. We can prepare Wills that protect your beneficiaries and are flexible enough to cover many of the possibilities that could arise.

We can also work with your financial advisors to ensure full consideration is given to your business structures, trusts and self-managed superannuation funds, as well as helping ensure you have made effective binding nominations for the proceeds of your superannuation and life insurance policies.

If you would like advice on creating a valid Will, call me on 07-32286133 or send me an email at [email protected]illhouse.com.au.

The information in this blog is intended only to provide a general overview and has not been prepared with a view to any particular situation or set of circumstances. It is not intended to be comprehensive nor does it constitute legal advice. While we attempt to ensure the information is current and accurate we do not guarantee its currency and accuracy. You should seek legal or other professional advice before acting or relying on any of the information in this blog as it may not be appropriate for your individual circumstances.