If a person wants their estate to be distributed in a particular way upon their death, a will is essential.
Making a Will can save your loved ones a large amount of money and stress.
It often gets overlooked. It sometimes gets forgotten. The majority of the time it gets placed in the too hard basket. However, in reality, with the assistance of an experienced solicitor, making a Will is a simple, stress- free, and cost effective process.
When you write a Will, you appoint an executor who will oversee the processes of distributing your estate in accordance with your wishes.
There is also room in a Will to exclude family members who you do not want to have access to your assets. However, the law does protect certain people who have been dependent on you and will suffer hardship as a result of being left out of your will. In such situations a Family Provision Application (FPA) can be made under the Succession Act 1981 (Qld) for those who wish to contest your will. Family Provision Applications are limited to certain people i.e. your surviving spouse or de facto; your children (includes stepchildren and adopted children) and a dependent (includes any person who was being wholly or substantially maintained or supported by you i.e. parent). If your will involves the prospect of leaving out any of these people you should seek further advice in its preparation.
If a will is not made, the estate will be distributed according to the intestacy rules contained in the Succession Act 1981 (Qld). The rules ensure a distribution of property, in certain proportions, to the relatives of the deceased person. Friends or charities do not receive property under the intestacy rules. So, if a person wants friends or organisations to receive property after their death, or wants relatives to receive certain amounts of property, a will must be made.
Where a person dies leaving no will and no next of kin, property of the deceased passes to the Crown (government) as un-owned property.
When a will is drawn up, great care must be taken that all formal requirements have been observed in the will and that it is clear. Any challenge to the validity or interpretation of a will involves court action that may be expensive, delay distribution of the estate and cause hardship to the beneficiaries in the meantime. Nevertheless, employing a solicitor with legal knowledge to draw up a will is a safeguard.
When should you change your Will?
- It is important to update your will every 5 years to ensure that it still reflects your current wishes.
- If you get married, divorced or separate from your partner
- If you enter into a de facto relationship
- If you have a new child
- If your executor or beneficiary dies
- If a specific gift you made to a beneficiary no longer exists i.e. car, house
- If your financial circumstances change i.e. substantial increase or decrease in the value of your estate
- If your children reach the age of 18 years