It’s surprising how many Australians don’t have an up-to-date Will, or any Will at all. If that’s you, and you want the peace of mind that your family will be protected after you’ve gone, the beginning of a new year is the perfect time to get a legally binding Will off your to-do list.
There are several reasons why people don’t have a Will. For many, it simply falls into the too-hard basket. Talking about death is not really a common topic so many people think creating a Will is going to be a complicated and stressful process. Yet in most cases, it’s really simple.
Also, some people mistakenly believe that they don’t own enough to justify a Will. But what they forget is that we’re all worth much more dead than we are alive when you factor things like superannuation and life insurance into the equation.
Ultimately, however, probably the biggest reason people don’t have a Will is procrastination – it’s on their to-do list, but it never makes it to the top of the pile.
Why you should have a Will
The main reasons to create a Will include:
- to appoint someone – an executor – who has the authority to step into your shoes and tend to your affairs when you die
- to communicate your wishes regarding the distribution of your assets after your death, and
- to try to avoid disputes that may arise if you don’t create a Will.
Many of the disputes we deal with at Maurice Blackburn Lawyers result from people not having a Will, or having one that is out of date and doesn’t reflect the deceased’s circumstances at the end of their life.
Sometimes people think that they have to have all of their affairs sorted before they can set them down in a Will. But provided you’ve got a basic plan around what you want to do, it’s important to get that in writing. Then you’ll have an executor of your Will appointed, so you won’t have a fight about who’s going to administer your Will, plus you’ll have some instructions in place.
So what happens to your assets if you don't make a Will?
You will be deemed to have died ‘intestate’ if you pass away without a Will. The distribution of your estate will be made according to a formula, known as an intestacy formula that has been set out in an Act of Parliament. Basically, your assets will be distributed among those you’ve left behind according to their relationship to you. Often, this starts with a spouse or children.
By not having a Will, you essentially lose control of how your assets are distributed. You’re effectively delegating the decisions about the distribution of your estate to the legal system. Every state and territory has its own intestacy regime and therefore the distribution of the estate will depend on where the estate is located. ,
Avoid family drama and disagreements
To minimise disagreements among your family members after you're gone, having a Will is a really good place to start. Then, at least you’ve expressed what your wishes are, and your survivors – and the legal system – have something to go by.
Give careful thought to who you think you owe a responsibility to when you’re preparing your Will. People will say to me, “I want a Will that’s absolutely challenge-proof.” Sure, you can make a Will that’s pretty solid, but if you leave out a child or your spouse, for example, then you run a real risk that they will challenge your Will.
It’s important to note, however, that you’re under no obligation to treat your children equally in your Will. For example, the law doesn’t say that I have to treat my four kids the same. It just says that I need to leave adequate provision for them – basically, have they got enough to get by?
How do I make a Will?
Our online Wills service, MyLife Wills™ is a great place to start. You can provide the information for your Will online in the comfort of your own home or on your lunch break. It only takes 30 minutes, reducing face to face time with a lawyer, therefore reducing the cost. However, the significant difference with our online service is that an expert Wills & Estates lawyer will draft your Will so you can be confident that it’s legally valid.
To protect yourself, your assets and your loved ones, it’s time to take your Will out of the too-hard pile and put it in the must-do pile. Start online today.