What is a Will?
A Will is a legal document that says how your estate will be distributed after you die. The property that you leave when you die is known as your estate. Your Will can also include your wishes about things such as who you want to care for your children after you die and your burial wishes.
Why make a Will?
Everyone should have a Will. A Will is a legal document where you say what you want to happen to your estate when you die. If you don’t have a Will, your estate may not go to the people you want it to.
What if I die without a current Will?
If you die without a current Will the law will decide what happens to your estate. This may mean that your estate is not distributed in the way that you wish. Your estate may be distributed in accordance with an old Will. Otherwise the court will appoint an administrator to distribute your estate following legal rules known as the rules of intestacy.
That means, your assets may go to:
• your spouse or domestic partner, children or parents, or more distant relatives, or
• if you have no relatives at all, your property will go to the State.
Choosing an executor
An executor is the person or trustee company who will manage your estate after you die. Your Will names the executor, and gives them power to deal with your estate in accordance with the terms of your Will. Your executor must follow the directions in your Will. They can’t make guesses and change your directions even if they think you might have changed your mind. If they fail to act on the Will, the court or Registrar of Probates can ask them to explain. The court or Registrar of Probates can take this action themselves or when someone complains.
Who should I choose as my executor?
Your executor could be a family member, friend, lawyer or other professional, such as an accountant or trustee company. When choosing an executor, you should consider their circumstances and skill set to decide if they are suitable.
What should I consider when choosing an executor?
• You need to make sure the person you choose to be your executor has the skills and time to do it. You should ask them if they are happy to take on the responsibility.
• Your executor needs to be someone you can trust to carry out your wishes. It is their job to take control of your estate and make sure the right people get what they should.
• The executor also needs to be able to understand basic accounting, and deal comfortably with a range of people, including banks and lawyers, and your family. Sometimes they may need to deal with disputes between beneficiaries or claims being made against your estate.
• Your executor needs to carry out their responsibilities after you die, so an executor who is much older than you, is unwell or likely to move overseas is not a good choice, especially if you have children who may not benefit for some years.
• If you appoint a professional as executor, they will need to be paid from your estate. You should refer to payment for their services in your Will.
• Sometimes an executor might need professional assistance to undertake their role. Any costs associated with such professional help will be paid out of the estate before the assets are distributed.
Why it’s a good idea to appoint more than one executor
Even though you trust your executor, it can be good to have two people who can keep track of what is going on and make sure the right thing is done. You are allowed up to four executors, but this is not usually recommended.
If you choose to appoint more than one executor, make sure they can work together. If you appoint one executor, it is a good idea to appoint an alternate person in case your first person can’t (or won’t) take on the role after you die.
Who is legally entitled to benefit from my estate?
You are expected to look after your dependants in your Will if they need your help and you have the resources. Dependants could include people like your partner or children, even if they are adults. If you don’t include these people, they may be able to challenge or contest your Will. If their claim on your estate succeeds, the court will make an order giving some of your estate to that person. It doesn’t matter what wording you use in your Will, you can’t get around this if the court decides it is appropriate. Some of the costs of such claims may be paid out of your estate.
Stuart and the expert Legal team at The Hrkac Group can help you though the Will making process, assisting you with any questions you may have along the way and give you peace of mind that your wishes will be complied with.