What is a will?
A will is a legal document that sets out who will inherit your assets when you die. A will also appoints executors and appoints guardians for any minor children. A will can also express a wish about the disposal of your body.
Appointing an executor
Your executor will be authorised to deal with your estate when you die. They have very broad powers to decide whether an asset is to be sold or transferred in its current form to a beneficiary as well as deciding the manner of any sale.
For example, your executor (in the absence of any specific direction) can decide whether to transfer your house to one or more beneficiaries or if selling, can decide whether the sale be by auction or private sale.
Who can be your executor? Commonly people will appoint at first instance their partner with a substitute executor or executors such as children. It is important to have a substitute executor in case your first choice is unable or unwilling to act on your behalf due to illness, death or a change in your relationship. Careful thought should also be given when appointing two or more executors as to whether or not they will work well together. In cases of conflict or in cases where there isn’t any person that is suitable, professionals such as lawyers or accountants can be appointed to be your executor.
Dividing your assets
In your will, once your debts have been paid, you can direct how the remaining assets ought to be divided between one or more beneficiaries.
There are a number of ways you can gift your estate, for example:
- You can give specific assets to a beneficiary
- You can leave specific amounts of money to a beneficiary
- You can divide your estate into shares and leave those shares to a variety of beneficiaries in whatever percentages you wish
What assets can you leave in your will?
Basically, you can leave any asset that is your sole property.
You cannot leave jointly owned assets such as cars, bank accounts, home contents and real estate (other than real estate where you are a tenant in common) as they will automatically pass to the surviving owner.
It is important to know that assets held in a family trust or private company are not your assets and cannot be left in your will. In this case it is important to obtain legal advice about your role in the family trust or your shareholding in the company.
Superannuation may or may not form part of your estate. Whether or not it does depends very much on the terms of your industry/retail super fund or self-managed super fund and the existence of any binding or non-binding death benefit nomination. It is important to get legal advice regarding your superannuation benefits as they can often be the biggest or one of the biggest assets of your estate.
What happens if you don’t have a will?
If you don’t have a will, you are deemed to have died intestate and your assets will be distributed to the persons and in the proportions specified in the Administration & Probate Act 1919.
Not having a will can create a number of complex and often expensive scenarios particularly when you may still be legally married (but not divorced) and be in a new domestic partnership or where there are children involved.
Why get a lawyer to prepare your will?
By getting a lawyer who is skilled in the area of wills to prepare your will, you will have peace of mind knowing that your will is drafted and signed properly, safeguarding your loved ones against any unnecessary stress and expense of having to rectify any errors in the will or even having to make an application to have an informal will admitted to Probate. A lawyer will also be able to give you proper advice on reducing any potential challenges to your will.
When should I update my will?
Generally, you should update your will in the following circumstances:
- You enter into a new relationship (registering a domestic partnership or marriage will completely cancel your will)
- You end a relationship (only divorce, not separation, will remove references to your former spouse from your will. The rest of your will remains in place)
- Births, deaths, estrangements with friends or family
- Change in your assets that warrant a change to your will
Even if none of these events have occurred it is good practice to review your will at least every 5 years to ensure it correctly expresses your wishes.
We’re here to help!
If you would like to discuss your will we’re here to help guide you through the process. We have permanent offices in Adelaide, Port Augusta, Whyalla, Murray Bridge and Clare. We also service Roxby Downs on a regular basis.
We have been operating in South Australia since 1946 and have a proud history of ensuring everyone has fair access to the power of the law.