What to consider when preparing your Will
Many people feel overwhelmed when thinking about their will and how to record their wishes and as a result put it off longer than they should. However, the process of preparing a Will does not need to be as complicated as it may seem.
The purpose of this article is to set out what you can expect when you see one of the specialists wills and estate planning lawyers at Johnston Withers.
When you attend your first appointment with one of our lawyers they will discuss the following things with you. Depending on your circumstances you should allow half an hour to an hour for this appointment.
We recommend you think over these topics before your appointment. You do not need to prepare written answers or come to a final decision about what to record in your Will, our lawyers will be able to assist you with that!
Firstly, you will be asked about your family and the people in your close circle.
Your lawyer will ask you about the names and the relationship you have with your spouse or partner, children, parents, siblings and grandchildren. You will be asked about any former spouse or domestic partner(s).
At the end of this discussion we should have a clear idea of your “family tree” and we will be able to advise you about people who might be able to bring a claim against your estate under the Inheritance (Family Provision) Act 1972 (SA) (see our article on Contesting a Will when you have been left with nothing or not enough).
Assets and Liabilities
We will then discuss with you, your assets and liabilities (those that you own personally and those you own jointly with others or in which you may have an interest e.g. a trust) and their value.
We will go through your assets with you to explain to you what would occur to these assets ordinarily upon your passing.
For example, we will explain that if you own property as joint tenants with another, ownership will pass automatically to the other owner or owners upon the surviving owner noting your death. Jointly owned assets don’t form part of your estate (see our article on Joint Tenants vs. Tenants in Common – What is the Difference?). We will also explain what happens to your superannuation and the importance of a binding death nomination.
It’s helpful if you have thought (and, if possible, made a list) of the following assets and values before your appointment:
- Any real estate
- Superannuation entitlements including any self-managed superannuation funds
- Private Companies
- Trusts (discretionary, unit etc)
- Another other assets
Also, have a think about the following liabilities and values before your appointment:
- Personal loans
- Car finance
- Credit cards
- Any other debts
Wishes for your Will
After discussing your family and financial situation we will have a much better understanding of your personal circumstances which allows us to provide you with advice and guidance about your Will and tailor the Will to reflect your wishes.
You will be asked to make the following decisions:
- Who do you want your executor to be.
Your executor stands in your shoes when your pass away. Their job is to call in the assets of the estate, pay of the liabilities and distribute your estate in accordance with your wishes.
We recommend that your executor be someone you trust and has a reasonable understanding of your affairs. We usually recommend that you appoint one or two people as your executor with one or two people appointed as a backup, if your first choice dies before you or is otherwise unwilling or unable to act.
- Whether you would like any specific items gifted
The executor’s role will be to call in and liquidate the assets of the estate. You should consider whether there are any items such as family heirlooms or sentimental items that you would like gifted to a specific person rather than be sold, and converted to cash.
- Is there any monetary amounts you would like left to anyone?
This includes any consideration of charitable or religious requests (gifts).
- Who would you like to receive your estate?
This is usually dealt with by way of residue (ie what is over once your assets are called in and your debts paid and specific gifts and legacies distributed) rather than setting out who gets what monetary sum. The reason for this is that your net worth is going to change over time and you do not want to be having to update your Will every time this occurs!
Once you have worked out who you want to be your beneficiaries consider what you would like to happen if they have died before you. Would you like their interest to go to their child or children or is there another alternative that you’d prefer?
Depending on your circumstances you may require a trusts (such as testamentary, special disability or protective trust), a right to reside in property, a contract for mutual Wills (see our article on Contracts for Wills) or the gift of power of appointment in a discretionary trust.
- Guardianship of infant children
If you have infant children you may want to express your wishes on who should care for your children in their infancy.
- Burial or cremation
Finally, if you have a strong preference on whether you would like to be buried or cremated it should be recorded in your Will.
Next Steps in preparing your will
After our meeting we will prepare your draft Will. This will be sent to you so you can read it over at home. Once you have read over the document and any necessary changes have been made we arrange a second appointment where we go over the document with you and when you are happy with the content and understand your Will it can be signed. You will then have a legally binding Will!
Johnston Withers Lawyers: Experienced Lawyers in Wills and Estate Planning
Johnston Withers Lawyers are experienced in providing advice on wills and estate planning. We would be happy to work with you to discuss your Will and make the process as simple as possible for you. If you’d like advice from one of our will and estate lawyers, please contact Caitlin Walkington on (08) 8231 1110, or get in touch online.