What is a will and how does it fit into law?
A will is part of succession law which is one of the three main areas of law relating to the death of a person:
- Procedural law including registration of death.
- Coronial law investigating the circumstances of death.
- Succession law dealing with the assets and liabilities of a deceased person.
There are two main areas of succession law:
1. Litigious - This is where people go to court to contest whether a will which may include:
- Contesting the validity of a Will and if it meets the strict conditions about how a legal Will must be drafted.
- Construction of the Will and what the deceased meant in the Will if it’s not clear.
- Administrative disputes.
- Family provisions including whether the deceased properly provided for his family or other parties when drafting the Will.
Non-litigious - These are the services and procedures for detailing a person’s intent for how their assets will be divided and the administration or procedure around making that happen following death which includes:
- Drafting Wills.
- Administration of estates.
Why do I need to have a Will?
There are several reasons why you and your family will benefit from having a Will. If you die or have an accident or illness which means you can’t make decisions for yourself this is how the Queensland Government will handle the situation if you don’t have a Will or Enduring Power of Attorney:
- If you have an accident or suffer a health condition that incapacitates you then someone else will be appointed to act for you and make important decisions about your health and finances. The person the state appoints may not be the person you would have chosen yourself and, if you’re in a coma, in intensive care or in a permanent vegetative state, they may then be able to access your assets to pay for your care, even though they don’t know what your medical wishes are. If you have an Enduring Power of Attorney in place your affairs will be handled by the trusted person you nominate.
- If you die without a Will the State of Queensland will determine who gets your assets. And obviously once you’ve died it’s too late to go back and make a Will so you have to hope your family are happy with those decisions.
- If you die or become incapacitated your family may have to go through lengthy and expensive court processes to act on your wishes when you die. If you have a Will in place your wishes will happen much faster and things will be easier for your family and loved ones.
- If you have underage children and die without a Will the state of Queensland will appoint a guardian for your children and their choice might not be the same as you or your children’s choice.
Do you trust the state to pick the right people for these important roles? We certainly don’t!
A Will is the only way to ensure that your assets are distributed according to your wishes and to ensure that your family’s needs are met.
What does a Will cover?
You probably know that a Last Will and Testament lays out how to dispose of your assets after you die. But as well as dividing up any assets a Will also specifies:
- The guardians for your children.
- Who your executor is – With the executor being the person who pays your creditors, sorts your assets and transfers them to the beneficiaries.
- If you’d like to be buried or cremated.
- Which personal or special assets should be passed on directly and to whom.
- If you’d like to leave a home for your family to live in giving them security.
- How to deal with your digital assets such as social media profiles.
Those are just a few examples of what a Will can accomplish and why drafting a Will is so important. Especially when we remember that if you do not write a Will and make the choices yourself then the state of Queensland (or whichever state you or your assets reside in) will choose for you which will be a costly and lengthy process.
How do I get my Will and legal affairs in order?
To get your legal affairs in order you need to prepare a number of legal documents that cover the worst case scenarios. Ideally this is done as part of an Estate Plan to ensure you and your family will be cared for when you die. An Estate Plan takes into consideration assets both inside and outside your Will along with superannuation, asset protection, life insurances and any other important considerations.
Call us today for to get the best advice and start the process.
What’s wrong with an online Will kits or drafting my own Will?
Succession law litigation always revolves around problems with a Will. Whether it’s a problem with incorrect drafting of a Will, what they deceased meant when drafting the Will (if there’s more than one possible interpretation) or if the deceased did not get the right advice about how to leave the estate (or change his assets to avoid it going to court).
Getting proper legal advice and having an experienced lawyer draft your Will minimises the litigious potential associated with a deceased estate and all the dramas that surround a Will being contested. Getting this proper legal advice and making sure your Will is drafted correctly can save your family months or years of hassle and untold expense if you homemade or online kit Will turns out to be invalid.
The most common problems with kit Wills and amateur Wills include:
- Not meeting the requirements needed to be seen as a valid Will.
- Not properly providing for family members.
- Not making sense.
Any of these issues with your Will could land your family or loved ones in court and cost tens of thousands of dollars to sort out. The relatively small cost associated with hiring Charter Conveyancing to draft a proper Will will help your avoid family unnecessary financial hardship and emotional distress.
How can you help draft a valid Will?
When you hire Charter Conveyancing to draft your Last Will and Testament we’ll go out of our way to make sure your Will is valid and:
- Complies with important formalities for Will writing, execution and attestation.
- Is made by a person with testamentary capacity who knows and approves of the contents of the Will.
- Deals with property and appoints executors in order to be admitted to probate.
- Has not been revoked.
Remember, if you live in Queensland or your assets are here, if you die without a Will in place then the state of Queensland will determine who gets your assets, who will act for you to deal with your estate and who will get custody of your children.
If you’d like to be certain what happens to your assets, estate and children when you die then call Charter Conveyancing to get your Last Will and Testament organised now. It’s a small price to pay for peace of mind.