Empower yourself by knowing that it’s relatively easy to find a free Will template on the internet. You can also find a Will “kit” from a newsagent or online at a reasonably cheap price. Some websites even have “data collectors” that take your information and create a Will for you, seemingly without any legal expertise required. However, it’s important to note that these ‘data collectors’ may not have the legal knowledge to ensure your Will is valid and comprehensive.
Given the potential risks, it’s essential to consider whether writing your own Will is a good idea. Understanding these risks can help you make an informed decision and ensure you are not caught off guard by any unforeseen complications.
Understanding the importance of a valid Will is crucial for your peace of mind and the security of your loved ones. Knowing that your wishes will be carried out as intended can bring a sense of security and peace, even in the face of life’s uncertainties.
The sole purpose of writing a Will is to direct where your assets go when you pass away.
If you have a valid Will, your executor applies through the probate process and distributes your estate in accordance with what you have written in your Will. If you hold joint property with your spouse, probate is not usually required unless substantial assets are held in your own name.
There are numerous situations where a valid Will is crucial for the proper distribution of your estate and the care of your family and loved ones. This underscores the importance of seeking professional legal assistance for Will preparation, particularly if you have a complex family or financial situation, such as blended families, significant debts, or international assets, such as blended families, significant debts, or international assets.
If your Will is deemed invalid by the probate court, the consequences can be significant. Your estate may be delayed in distribution, leading to increased legal and court costs, and potentially causing financial hardship and emotional distress for your family. This underscores the importance of seeking professional legal assistance for Will preparation.
Most people think that their situation is simple and that a DIY Will is enough, but consider the following situations and whether they may apply to you or someone you know.
Your home-made Will is lost or cannot be found.
When a lawyer prepares a Will for you, they usually keep the Will after you sign it in safe custody and provide you with copies.
Even if you take the original Will, the lawyer will keep appropriately certified copies. If you subsequently lose the original Will, your family can ask the court to look at the copy and allow the wishes in that Will to stand.
If there are no copies, the family is put to the expensive task of applying to the probate court for a grant of administration, which is a more lengthy and costly method of dealing with an estate than the usual grant of probate.
Your handwritten Will is not signed correctly.
There are rigorous requirements for the signing and witnessing of Wills. If your Will is not signed correctly or appropriately witnessed, it may be invalid.
If your Will does not address all of the assets and liabilities that you leave when you die, it may be ineffective.
Once your Will is made, even writing on it later or making any changes will invalidate it and may render it ineffective, either partly or wholly, in dealing with your assets.
You own a business
The business will likely continue to run after you die. You will need a validly appointed executor to run the company until it is either sold or dissolved. You can achieve this in a valid Will.
Consider that the business may have ongoing expenses such as rent and staff costs that still have to be paid. If no one is validly appointed to run the business, this may cause the family hardship until the business can be liquidated.
You and your partner are not married.
When you purchased the property together, it was bought in equal (or unequal) shares, for example, because you both have children from a previous relationship.
Again, the property may not be transferred to your de facto partner or your children as a matter of course. If you do not have a valid Will, your property cannot be dealt with cost-effectively and straightforwardly.
Previously made Wills are not automatically revoked when you make a new Will.
If you have a Will that you made when you were younger, perhaps you will leave all of your estate to your parents, then move residence, commence a relationship, and have children.
If your new Will is invalid, your estate may go to your parents instead of to your new family as you intended, and if it does, it will be a costly and longer process.
You are married but hold property solely in your name
You may have bought the property when you were single or owned the property from a previous marriage or inherited it from your parents.
If you have no valid Will and no executor to put into effect what you have written in your Will, the property cannot be transferred until the Court appoints an administrator after delay and costs have been incurred.
If you leave your superannuation in your DIY Will
Superannuation may form part of your estate and be dealt with in accordance with the terms of your Will. Still, in most cases, superannuation will be paid directly to a beneficiary nominated in your superannuation policy without any reference to the terms of your Will.
While you can provide in your Will that your estate be given to whoever you would like, only a small eligible group of beneficiaries can directly receive superannuation benefits on your death.
Superannuation funds have particular rules for releasing funds to an estate, and an invalid Will makes this process more challenging.
Again, the release of funds is not automatic for your family, and your loved ones may suffer hardship if it is delayed.
Lawyers are trained to write valid Wills
Your lawyer will always do these two things when drafting your Will they:
- take into account the strict law requirements for a Will to be considered valid by the state probate court; and
- Also consider your particular situation and the specific individualised elements you need included in your Will.
Your lawyer can also help plan other aspects of your estate, such as whether you need to appoint a guardian for your children, a trustee to run your business, or an elderly relative to remain in your home after you are gone, and a myriad of other life circumstances that are particular to you.
If you or someone you know wants more information or needs help or advice in preparing a valid Will, please contact us 0407 171 626.