The top 5 questions to ask yourself before creating a Will

So you’re thinking about creating a Will but don’t know where to start? Don’t worry – you’re in good company. Most people feel daunted by the thought of drafting a Will. It can be confronting to think about what might happen to your loved ones when you pass away. But there are steps you can take to make sure your wishes are met and instructions carried out without confusion or dispute. Step one: ask yourself the following five questions.

1. What should you include in your Will? 

A Will can include:

  • assets, such as houses, cars, shares, cash
  • rights and powers, such as the right to appoint the trustee of a family trust
  • specific belongings, such as artworks, jewellery, collectibles, photos. It can also include instructions for other matters, such as:
  • guardianship of your children
  • organ donation
  • funeral arrangements. 

Within these categories, it’s up to you to decide what to include in your Will. Keep in mind that debts remain debts, even after a person has passed away. So don’t forget to consider these alongside your assets. 

2. Who should you appoint as your executor/s?

An executor is the person named in your Will who’s responsible for carrying out your instructions. There is no rule about who the best person is to be executor. It can be your spouse or adult children (over 18), or a trusted friend or relative. You can also appoint multiple people to act as joint executors. 

It’s important that your executor is comfortable taking on the responsibility and is able to devote the necessary time to managing your estate. It’s often wise to appoint someone younger, as there is a good chance they will survive you. You can also appoint a public trustee to execute your Will. 

3. Who will receive your assets and how much will they get?

It’s up to you to decide who gets what and how much; however, you should make sure that you’ve provided fairly for your spouse or de facto partner, your children and any other dependants. If you don’t provide for them in your Will, they can make a challenge against your estate.

You may also wish to leave a gift to charity. This is called a ‘bequest’ and there are several types to consider. It’s a good idea to get legal advice to make sure your bequest is done correctly.

4. Who should you appoint as guardian of your children?

If you have children under 18, a Will is imperative because it appoints their guardian. It’s tough to imagine your kids without you and your spouse (or partner), but it’s a good idea to choose who will care for them and guide them into adulthood. This is particularly relevant to same-sex couples, as the right to guardianship varies across Australia.

When choosing a guardian, think about trusted friends and relatives who share your values. Consider their lifestyle, their proximity (you might not want to uproot your kids) and their financial stability. Appointing a guardian will make your intentions clear and help avoid disputes; however, it’s not binding. The Family Court has an overriding discretion to appoint a different guardian where it considers it to be in your child’s best interests. 

5. How do you want to be farewelled?

It may seem morbid at first, but thinking about how you want to be farewelled can be a surprisingly comforting task. Funerals are a celebration of life. How would you like to be celebrated?

Your Will is the perfect place to stipulate your wishes and expectations. It’s best to address the big decisions first. Do you want to be buried or cremated? Are there cultural or spiritual obligations that need to be met? Once they’re out of the way you can move on to the fun stuff. Such as, what music or theme song will be played as your funeral concludes. Be creative; remember it’s a celebration of life! 

Kerry-Ann Smith is an Associate in Maurice Blackburn's Melbourne office.

TOPIC: Will disputes
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Kerry-Ann Smith

Maurice Blackburn Melbourne
Kerry-Ann is an Associate in the Maurice Blackburn's Wills and Estates Law team in Melbourne.Kerry-Ann acts on behalf of family members in relation to testators family maintenance claims. She assists individuals and family members who have been unfairly left out of a Will in making claims for provision in the Supreme Court.Before joining Maurice Blackburn, Kerry-Ann was a lawyer at a boutique commercial law firm. She provided estate planning advice to high net worth individuals in the financial services industry. Kerry-Ann also advised on complex structures and trusts and gained considerable experience drafting complex Wills with Testamentary Trusts. She also assisted small and medium sized businesses with business succession planning advice.Kerry-Ann is a member of the Law Institute of Victoria's Ethics Liaison Group and the Victorian Women's Lawyers....

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