Holiday season and a new year gets many of us thinking about those important jobs we need to get to. If you haven’t already made a Will; you may want to add this near the top of your list.
A Will is one of the most important legal documents you ever put in place. However, many people do not appreciate their significance. Issues that arise as a result of a badly drafted one don’t become apparent until after the Will maker has passed away.
We find clients who have had previous experience administering the estate of a deceased family member are more likely to understand the importance of having a clear and correct Will.
It is the surviving family members that must deal with any issues that arise. Sadly, this process sometimes irreparably damages relationships.
Open up to your lawyer
In order to draft a comprehensive Will, a lawyer will need a good understanding of your life. If they know about your relationships, children, assets and liabilities; they can ensure that your Will takes all of these things into account. This can minimise the risk of it being challenged after death. For example, you may have an estranged child and choose not provide for them in your Will. If you do not give a reason as to why you have excluded them from sharing in your estate, that child can bring a claim under the Family Protection Act. This can be expensive for your estate, time-consuming and stressful for surviving family members.
Be clear on Trust matters
If you hold the power to appoint and remove trustees under a family trust, many trust deeds enable you to pass that power to someone under your Will. Your lawyer should review the terms of your trust deed. These determine whether you hold the power and if it can be passed to someone following your death. Consider carefully to whom you should pass the power to. It is important to ensure that the trust will be responsibly managed and that the remaining trustees can cooperate.
If the trustees of your family trust owe you any money, consider whether the debt should be forgiven in your Will. Unintended tax consequences can arise if this is not done correctly and the trust is not in a position to repay the debt to your estate.
Safeguard your children’s future
A correctly drafted Will is very important if you have young children. Under your Will you can appoint a testamentary guardian to care for your children if you die. It is also possible to appoint a guardian in the event the surviving parent of your children fails to appoint a guardian under their Will or dies without one.
Be fully informed
It is possible to draft your own Will using an online or hard copy kit. However, most people do not understand the implications of “getting it wrong” or of failing to consider a legal issue they were not aware of. Some organisations or lawyers do draft Wills free of charge. That organisation or law firm will also be appointed an executor of your estate following your death. They charge for their time in administering your estate and that is how they generate their fees.
We recommend that you contact your lawyer if you wish to put a new Will in place or update an existing one. It will ensure that you are alerted to all issues that could arise so you can be sure you minimise any risk and stress to your family after your death.