Have you made a will? A will is a legal document which sets out how a person (the testator) intends to distribute their assets after their death. The most important part of making a will is meeting the necessary legal requirements to ensure that it is valid.
If a will is found to be invalid after a person’s death, their assets and debts will be distributed using a predetermined formula. This is the same process that would apply if you had not made a will.
When you make a will, it must be in writing; be signed by the testator in the presence of two or more witnesses; and must include the witnesses’ signatures.
If you die without a valid will it is called ‘dying intestate’. There are set rules to decide who gets your assets. These rules apply to everyone and do not take into account an individual’s wishes or situation.
An important aspect of life-planning is securing the financial future of your family by making a valid Will and appointing a Power of Attorney. We can help you navigate the process with a simplified approach that will enable you to be well informed and prepared for the future.
What to Include
When making a will, certain things to consider might be:
- Assets such as houses, cash, cars, shares
- Rights and powers, for example who will be the guardian of their children
- Personal belongings
- Organ donation
- Funeral wishes
A testator cannot leave property that is owned as joint tenants or assets held in a family trust.
Executor of the Estate
An executor is the person appointed in the will to carry out the deceased person’s wishes. The duties of an executor will often include the following:
- Informing beneficiaries of their entitlements
- Arranging the funeral
- Selling assets
- Paying debts and expenses
- Maintaining tax records
Who Can Make A Will?
Generally, a will can only be made by a person who is 18 years of age or over. The only circumstances which allow a minor to make a will are the following:
- If they are contemplating marriage; however it will only take effect if the marriage takes place.
- If they are married; or
- If they have been previously married and the will was made in contemplation of marriage or whilst they were married.
To make a will, the person must also have testamentary capacity, meaning they must be of sound mind. When assessing this, the person must know and understand:
- what a will is;
- what the testator is leaving in the will (approximately); and
- the claims a person may make against their property
Changing a Will
A person can amend their will at any time and may do so as many times as they wish. A codicil can be added to a current will for small amendments, otherwise a new will can be made which will automatically revoke the existing one.
A new will should be made if the person:
- Gets married;
- Gets divorced;
- Invests or purchases an asset; or
- Becomes involved in a new business or trust
When a testator gets married, their will is automatically cancelled unless they were in contemplation of marriage at the time of execution.
Generally when a testator divorces, their former spouse is removed from the will however; it is recommended that a new will is made to avoid any complications or disputes.
Following separation, the testator should consider making a new will as, unlike divorce, their former partner will remain in the will. For example, if the testator dies after separation but before the property settlement, the property will go to the former partner.