The most important reason for making a Will is to ensure that after your death the assets that you have accumulated over your lifetime are distributed according to your wishes. If you do not make a Will before you die then your assets will be distributed strictly in accordance with the Administration Act 1903, which may be different from how you would have liked your estate distributed. Another important reason for making a Will is so that you can appoint an Executor of your choice who will ensure that all of the requests in your Will are carried out.
WHAT DOES AN EXECUTOR DO?
Your Executor:
- obtains a Grant of Probate, if necessary;
- takes charge of your assets;
- pays debts and funeral expenses;
- notifies all relevant parties; and
- sells or distributes your assets according to your directions in the Will.
Executors do not need any special qualifications, but you should choose someone reliable. If your executor needs help he/she can seek professional assistance when the time comes. These costs, if any, are normally paid out of your estate.
LEAVING SPECIFIC GIFTS
Unless you have a particular reason for doing so, it may not be wise to leave specific gifts of property. Unintended misery can arise where you dispose of some items but not others in the course of your lifetime, or where an intended beneficiary dies before you.
PROVIDING FOR YOUR FAMILY
Many people leave everything to their spouse or failing him/her equally to their children. If you and your spouse die leaving infant children, your executor is normally empowered to provide for them out of their share of your estate. You can nominate a guardian to care for your children in these unlikely circumstances.
JOINT PROPERTY
Property that you own as a joint tenant with another person is not affected by your Will. When you die, joint property automatically passes to the surviving joint tenant(s). Examples of joint property are family homes registered in the names of husband and wife as joint tenants. You can break joint tenancies during your lifetime if the need arises.
EXISTING WILLS
You can make a new Will at any time. A new Will makes your previous Will invalid. It is sensible but not essential to destroy your old Will when you make a new one.
STORAGE OF WILLS
You must ensure that your Will is stored in a safe place so that it is not marked, damaged or destroyed during your lifetime as this may affect your Executor(s) ability to obtain Probate of your Will.
MARRIAGE AND DIVORCE
Both marriage and divorce will usually revoke your Will, unless you specifically state otherwise in your Will.
For more information or if you would like Mony De Kerloy to provide advice about or draft your Will, please contact Nicholas De Kerloy at nicholas@mdk.com.au
