Preparing a Will

Updated: Nov 19

PUBLISHED IN DOWNTOWN MAGAZINE, ISSUE 24


‘Death & taxes! There’s never a convenient time for any of them’. For estate lawyers, helping clients prepare for the inevitable is part and parcel of the job. But for most folk, the thought of preparing a will can be emotional and uncomfortable. It’s why making a will is often put on the backburner for a later date, for when they’re older, have more assets or when kids come along. The truth is, preparing a legally valid will is one of the simplest things you can do now to protect your interests for the future, and it’s nothing to be nervous about.



WHEN SHOULD I MAKE A WILL?

Everyone’s circumstances are different. When you decide to make a will is a personal choice. And, while we don’t like to think about it, it’s important to remember that death isn’t reserved for the old and the ill, so it’s best to be prepared.


I NEED TO CHOOSE AN EXECUTOR OF MY WILL. WHAT DO THEY DO?

An executor is the person you ask to take on the responsibility to carry out your wishes after you die. Put simply, the executor makes sure your debts are paid and your assets go where you want them to.


CAN I APPOINT A GUARDIAN FOR MY CHILDREN IN MY WILL?

If you have young children, it’s a good idea to appoint a guardian to take on legal guardianship of your children should you and your partner die. This isn’t an easy decision, however, formally documenting who you would like to raise your kids when you can’t, will assist your family in planning your family’s next steps and help reduce family tension or indecision.


HOW OFTEN SHOULD I REVISE MY WILL?

Throughout your life, it’s important to review your will to make sure your instructions remain relevant and reflect your current circumstances, particularly after big changes (for example, if you get married, after the birth of a child, purchase your home or the loss of a partner).


SHOULD A LAWYER DRAFT MY WILL?

I always encourage my friends and family to engage a lawyer to guide them through the estate planning process and to draft and safeguard their will. Getting professional advice means your will is legally valid and ensures your testamentary intentions (aka ‘your final wishes’), will be acted on.


CAN SOMEONE MAKE A CLAIM ON MY ESTATE EVEN IF I HAVE A WILL?

The short answer is yes. According to the Succession Act (2006), ‘eligible persons’ have the legal right to make a claim on your estate. When you sit down with your lawyer to draft your will, it’s important to discuss who can make a claim on your estate and the process involved. The will can then be drafted to reduce the risks of an unwanted claim being successful in the courts.


WHAT HAPPENS IF I DIE WITHOUT A LEGALLY VALID WILL?

If you die without a valid will, the law decides how your assets are distributed. This is called an ‘intestate estate’ and it can be complicated, expensive and time consuming to administer.


THE THREE AMIGOS OF ESTATE PLANNING

In addition to your will, you should also consider preparing an enduring power of attorney and enduring guardian. Your power of attorney is a legal document that appoints someone you can rely upon to manage your legal and financial affairs should you not be able to make these decisions yourself. Likewise, your enduring guardian nominates who you have authorised to make your health care and lifestyle choices. You can also outline your preference for burial or cremation. You may also want to consider including specific health directives, which can include an ‘advanced health directive’.


At the end of the day, investing in good estate planning is a simple way to give yourself peace of mind and provide clear direction for those you love after you’re gone. You’ve worked hard for what you have and preparing a will makes sure it’s protected for the future.

Ready to get your estate in order? Give Stacey McAllan Legal a call on 02 6742 2122 today.

Stacey x

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