Published: 01 August 2018
Author: Amanda Burns
What is a Will and why do I need one?
A Will is a legal document that sets out the distribution of your assets (that is, your estate) upon your death.
You must be over the age of 18 to make a Will and must have testamentary capacity, meaning you can understand what your assets and liabilities are, what value they have and the nature and effect of the Will.
It is important that your Will is drawn to comply with all of the validity requirements of legislation and it is important to word it carefully to ensure your property will be divided according to your wishes. An important part of this is to identify in the first place which assets are covered by your Will. Some assets do not necessarily form part of your estate and you will need to think about how those assets will be controlled and distributed if you die.
If you die without a Will, this is known as dying intestate. The laws of intestacy govern the distribution of your assets. Intestacy laws set out a formula based on your relatives and dependants to work out who your beneficiaries will be.
There are many disadvantages of dying without a Will, including:
- Your property may not be divided according to your wishes;
- Your children and other dependants may not receive the financial assistance you’d like them to and they will inherit their share of your estate at the age of 18, rather than having to wait until they are of an age you consider appropriate, for example, 25. Ask yourself "Are my children likely to be mature enough or equipped with the life experience or skills to handle a substantial sum of money at the age of 18?" Remember it is not only your child/ren you should think about, it is the potential influence of your child's friends and other people around them and the impact peer pressure can have;
- Your step-children, an important relative or friend or favourite charities may miss out;
- Your estate may be administered by someone you disapprove of; and
- Your infant child’s trust account may be administered by someone you disapprove of and whom you believe may not have your child's best interests as their number one concern.
If you have young children an especially important part of making your Will is to nominate who your Executor and Trustee will be, that is, who will set up your child's trust fund and decide what the appropriate payments from the child's trust fund will be. You should consider the desirability of choosing a Trustee based on who you think would love, care for and raise your children if you couldn't.
If you have been separated for many years and are not presently in a domestic relationship with a new partner then unless you are actually divorced your spouse will have entitlements to your estate if you don't have a Will. For most people, this would be far from desirable. Remember that once married your legal status remains as such unless and until you get divorced.
You might have been separated from your spouse for many years and have a new partner but if you're not divorced then your spouse may still receive a share of your estate under the laws of intestacy.
If you have an infant child and die without a Will, it is the surviving parent who is first in line to apply to be put in charge of your child's trust fund and your child can gain access to their trust fund at the age of 18.
Once you make a Will it does not have an expiry date and can potentially last for many years, however, it is impossible to make a Will that will cover all possible future events. Your Will should be made in light of your present circumstances. Your Will must be reviewed whenever there is a significant change in your life and the lives of your loved ones such as births, deaths, marriages, domestic relationships, separation and divorce. If you have young children the arrangements you put in place in your Will now should be updated once your children have grown up and become independent.