Think you don't need a will? Think again

Many Australians don’t have an up-to-date will, or even any will at all. If that’s you, and you want some control over what happens to your assets after you’ve gone, now really is the time to get a legally binding will in place.

There are several reasons why people don’t have a will. For many, it simply falls in the too-hard basket. People don’t like talking about death, and they think creating a will is going to be a traumatic process. It’s not; in most cases, it’s very simple.

Also, 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, because we’ve got super, life insurance, and so on.

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
  • to try to avoid disputes that may arise if you don’t create a will.

Many of the disputes we deal with are the result of people not having a will, or having one that’s out of date and that doesn’t reflect the deceased’s circumstances at the end of their life.

Sometimes people think they have to have all of their affairs sorted before they can set them down in a will. In my view, though, if you’ve got a basic plan around what you want to do, at least get that in writing. Then you’ll have an executor appointed, so you won’t have a fight about who’s going to administer your will, plus you’ll have some instructions in place.

Take control of your assets

So what happens to your assets if you don't make a will? You will be considered ‘intestate’. The legal system would then distribute your estate according to a formula, known as an intestacy formula, that has been set out in an act of parliament. Basically, the formula distributes your assets to those you’ve left behind according to their relationship to you. Often, this starts with a spouse or children, if you have them.

By not having a will, you essentially lose control of your assets. You’re effectively delegating the decisions about the distribution of your estate to the legal system. Though every state and territory has its own intestacy regime, the basic principles are the same throughout Australia.

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 as to who you think you owe a responsibility to when you’re providing for them in 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?

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.

TOPIC: Will disputes
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Andrew Simpson

Maurice Blackburn Melbourne
When it comes to challenging or defending a Will, Andrew Simpson is the lawyer you want fighting for you. He is a Principal and the head of Maurice Blackburn’s national Wills and Estates Law practice, based in Melbourne. Andrew has 20 years’ experience as a lawyer and for the past 18 of these years he has practiced in Wills disputes and estate planning, so he understands the many sides to estate law. Andrew is so passionate about this area of law that in 2012 he wrote the plain English guide to estate planning, You Can’t Take it With You. Andrew works exclusively in Will disputes at Maurice Blackburn, helping clients fight for their rightful entitlements every day. He is a very approachable, compassionate lawyer who has an ability to build an easy rapport with his clients. “My early life as a lawyer was spent assisting clients with estate planning issues,” says Andrew. “This advice often involved advising clients on the extent to which their Will was at risk of a challenge. I developed a deep understanding of the issues that gave rise to a right to challenge a Will. I then began assisting people who were unfairly treated by being cut out of the Will or getting a smaller benefit than they believed was owed to them. “The most rewarding part of working in Will disputes is being able to help people obtain access to estate funds in circumstances where they are in financial need. This is life changing for most clients.” Andrew holds Bachelor degrees in Arts and Law, and a Masters in Law. He was awarded the Churchill Fellowship in 2004, and visited Canada, the United States and the UK to examine international approaches to estate planning and elder law. “I am driven because I know that I can use the law to significantly improve a client’s quality of life,” says Andrew. Accreditations & Memberships Law Institute of Victoria member Society of Trust and Estate Practitioners member ...

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