A will allows you express your wishes as to how your estate should be disposed of after you die. It ensures that you continue to support those people who are important to you and is the best way for you to show how important they were to you in life. Wills, just like other legal documents, need to done properly – call MLC Lawyers.
You need to choose an executor(s) who is the person(s) appointed to carry out your directions in the will. If you are leaving everything to one person or to a small group of people then they can be both executor(s) and beneficiary(s). This simplifies administration – but be careful in your choice, consider if your sole executor or beneficiary may be too ill or infirm to undertake the duties when the time comes – this is a particular concern as we all age.
Case study 1
‘Jack and his wife Jill have been married for over 30 years. Jill is beginning to suffer from dementia and has always left it up to Jack to deal with the finances, so she would be totally unsuited to handling estate issues if Jack died before her. Jill happily appoints Jack as her executor but Jack appoints one of their children to be executor and manage the estate for Jill.’
Many couples make their adult children executors and beneficiaries. This may not be a good move if the children don’t get along or if they live in different parts of the world. Keeping in contact and getting documents signed on time could cause problems. Also, a person signing a legal document overseas for use in Australia will require a Notary Public and this can be quite expensive as well as time consuming.
Case study 2
‘Brian and Bev have three sons whom they want to benefit equally under their wills but two of them have had an argument and refuse to speak or see one another. Brian and Bev are cannot sort out the issue so they appoint their remaining son as executor.’
If you have a young family or a child dies before you, leaving a child or children of your own, then the your executor may have the obligation to manage the estate on behalf of the child or children, until their assets are exhausted or they attain the age of majority you have set in the will. Seriously consider that your executor has the skills to complete the task and the time to undertake it.
At MLC Lawyers we make it a priority to discuss who would be an ideal family member, friend or professional for you to appoint as your executor.
Case study 3
‘Mary was appointed sole executor under her mother’s will. Her sister has two young children and Mary is required to invest the monies on their behalf. Mary failed to obtain advice on appropriate investments, and with the agreement of her sister the funds were invested in a third tier investment bank that offered a high return. Unfortunately the bank did not survive the GFC and although there is some hope of monies being released the funds will be frozen for a considerable period of time. The children are now adults and are demanding release of their funds. They are threatening to sue Mary and the estate.’
If you intend to give all your property to one person or share it all between a defined group of people, there is no need to identify items of property in the will. However it is a good idea to talk to us before you do this so we can discuss your property and make sure you know exactly what you are doing.
If you are giving a valuable item as a gift you need to clearly identify it, for example, ‘my diamond and ruby dress rings’ or ‘my red 1967 Mustang convertible.’
If the item is not so special or valuable, such as the car you own now (this will depreciate in value), you can identify this by writing ‘the car I own at the date of my death.’ You may buy a new vehicle before you die and this more generic phrase will cover that car.
You need to have a clear understanding what property forms part of your estate and what is excluded. This is especially important if you are self employed or if you have superannuation. MLC Lawyers can talk you through more complex issues resulting from property held by a range of entities, including trusts, and self managed super funds to make sure you know exactly what you are leaving to whom.
After a lot of thought you will have identified those people whom you want to benefit under your will. If those people are under a disability, such as underage or so disabled as to never be competent to make their own decisions, then the property has to be held in trust on their behalf. You need to decide the circumstances that must apply for the assets to be paid out for the benefit of those people with a disability.
You may want non family members to benefit from your estate but the law requires you to make provision or certain past and present family members. We can advise you on who may claim, how the claim will proceed and the range of outcomes.
If you want a particular charity to benefit from your will you need to identify it by its full legal name, again, we can help you in ensuring that gift reaches the charity.
Role of an executor:
- To undertake the wishes of the deceased as they have expressed them in their will
- To be responsible for collecting and protecting the assets of the deceased to pay estate debts and then distribute the remaining assets among the beneficiaries (you are not personally liable for the debts unless you have acted fraudulently or negligently in managing the estate.)
- You have the authority to undertake this by order of the Supreme Court when it grants you Probate of the Will
- An application is filed with the court enclosing the will, the death certificate, and an affidavit setting out the assets of the deceased, the known debts, the list of beneficiaries and an estimate of what benefit they will receive
- Once probate has been obtained then in most cases the assets of the deceased will be sold so the debts can be paid off and anything left over is distributed to the beneficiaries.