Will & Estate Planning – Top Ten Questions

1. Should I make a will?

Everyone should have a will. A will is the only way you can tell others how you want your assets to be distributed after your death. It is the only way you can provide for people who may depend on you financially, e.g. children.

2. Can I leave a child out of my will?
You have to be very careful about doing this. Children may be able to challenge your will if you don’t make adequate provision for them. And it’s no good including a term in the will that anyone who challenges the will loses their inheritance. This would not be valid.

3. Does it matter if I am very sick when I make the will?
As long as you have the mental capacity, it’s OK. But it’s a good idea to get a statutory declaration from a competent doctor to prove that you understood what you were doing when you signed the will.

In some States a court can make a will for you in certain circumstances, if you don’t have sufficient “mental capacity”.

Can I make a testamentary trust with a DIY kit?
No. You must see a lawyer. Consider the issues in the fact sheets carefully and ten make an appointment, armed with your research.

4. Can anyone be a witness?
No. The witness should not inherit anything under the will, or be your spouse/de facto. It is also best that the witness not be anyone who is married to a person who inherits under the will. It is sometimes possible to have a will declared valid if it does not conform to the technicalities, but it is far better to do it properly in the first place.

5. What happens to debts?
Unfortunately for those who survive you, any debts that you have while you are alive remain as debts.

6. What if I don’t have a will?
If you die without making a valid will, you leave what is known as an “intestacy”. This means you have not validly disposed of some or all of your assets.

Many people believe the Government takes their assets if they die without a will. This isn’t completely true. It could only happen if you have no living next of kin. However, if you die without a will, your assets will be distributed according to a legal formula. This might mean that your assets do not end up with the person you would have chosen. It also means that you have no control over who distributes your assets.

7. Who arranges the funeral?
Funerals could be arranged by anyone, but they will be paid for (or reimbursed) by the executor – the person who has the legal responsibility for this task. Nevertheless, it is far better to have dealt with the issue beforehand – if there are instructions in the will, but it is not read till after your funeral, you may not get what you intended for your funeral.

8. Do I need a lawyer?
It’s always better to get a lawyer to make your will. Lawyers are covered by indemnity insurance, which means that beneficiaries can take action against your lawyer’s insurer if they miss out on an inheritance because of an error.

9. Will the guardian we appoint for our children be appointed after we die?
Not necessarily, the Courts have the final say, but if you follow the guidelines we suggest and make an appropriate choice, then your choice will be persuasive.

10. Can I leave a particular piece of jewellery to someone?

Yes, but be sure it can be identified by the executor (you may want to take a photo) and the description should be incorporated into the will.