By making a Will, you are exercising your legal right to direct the manner in which your assets should be distributed on your death and to whom.
If you have no valid Will, you have died “intestate” and your estate will then be divided according to Statute Law, which may not be in accordance with your wishes. Certain friends, relatives or even a de facto spouse may miss out.
THE MAKING OF A WILL
- Any person, married or single, over the age of 18 who has the mental capacity to understand what is being done may make a Will.
- Any Will made prior to marriage ceases to have any effect upon a subsequent marriage taking place (unless the Will has specifically been made in contemplation of that marriage). Accordingly, it is essential that you consult us about a new Will when considering marriage or remarriage.
- Having made a Will, you should review it on a regular basis, at least every two years, but perhaps even more frequently if a “trigger event” (referred to below) should occur. Re-read your Will every two years and ask yourself the question “does this Will still achieve the objects which I intend?”. If you can answer in the affirmative, the Will should be put aside to be reviewed again two years later. At some stage in your life, upon reviewing your Will, you will in all probability find that your circumstances have changed so that the document no longer achieves your intentions.
MATTERS TO BE CONSIDERED IN THE DRAWING OF A WILL
- The selection of an ‘Executor’.
- The selection of a Guardian for infant children.
- What assets you own that will be disposed of under your Will (eg assets owned by a Company or Family Trust are not owned by you and may not pass according to the directions of your Will; similarly, life insurance proceeds and Superannuation proceeds may fall outside the terms of your Will, and the ramifications of jointly owned property must also be brought into account).
- The matter becomes more complex if you are involved in a second marriage or de facto relationship.
- Other issues that should be considered include whether a claim might be made against the Estate by a person who believes that they have been unfairly dealt with in the Will, the minimising of Capital Gains Tax liability and the adequacy of your life insurance and Superannuation.
“TRIGGER EVENTS” WHICH MAY LEAD YOU TO CONSIDER AMENDMENTS TO YOUR WILL
- The death of a close family member (spouse, child or grandchild).
- Marriage or re-marriage.
- A change in your financial situation or that of your potential beneficiaries eg. impending bankruptcy of yourself or a child, a sudden increase in wealth (eg. inheritance or lottery win)
- Changes to the Laws and Regulations relating to Pensions.
- A change in the circumstances of an Executor or Guardian named in your Will.
- The occurrence of special circumstances relating to your immediate family eg. the special needs of a particular child or grandchild.
Mackinnon Jacobs Lawyers can provide guidance and advice in relation to the above issues and explain to you the operation of Probate, the respective roles of the Executor and the Guardian, whether an Executor should receive a commission, the rights of the beneficiaries and associated matters.