What is a Will for?

Typically the answer here would simply be that a Will is a legal document nominating the people and/or organisations you wish to receive your estate when you die. These people and/or organisations are known as your beneficiaries.

However, this is only a small part of the true purpose of a Will.

At Will Wizard® we believe that the true purpose of a Will is to do everything possible to legally protect inheritances long term to keep your hard-earned wealth in the family, shielded from third party claims through the use of sophisticated but simple to manage testamentary trust provisions.
 

In addition, a Will’s true purpose should also be to provide your loved ones with extremely valuable opportunities to minimise taxes on inheritances after you die and to provide detailed guidance and options to executors to ensure they have maximum flexibility and options in order to distribute your estate in the most protected and tax-effective way possible.

Standard 2-5 page Wills do not share this true purpose.

A Will should also appoint a back-up estate distribution plan, appoint your executor or executors (including a back-up option), and can also appoint a guardian for any children you have who are under 18 years of age. A Will may also state your wishes in relation to your burial or cremation preferences. Will Wizard does all of this and more.

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Why is it important to have a Will?

All Australians over the age of 18 who has family responsibilities or owns property or investments should have a Will. By having a Will you can help ensure your assets go to the people you choose rather than those dictated by the government or the courts. You can also help ensure your children are taken care of by the people you prefer.

However, relying on a simple 2-5 page Will is not the answer.

The true reason Wills are important is so that your loved ones are provided with the best legal opportunities to maximise their financial security and happiness after you die.

If this sounds good to you, then an Inheritance Protection Will from Will Wizard® is the solution.

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What happens if I die without leaving a Will?

The short answer is it ‘depends’, which is not how you want to leave things.

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Dying without a valid Will is known as “dying intestate”. Your assets will be distributed according to the laws of the State or Territory in which you lived at the time of your death. This may not be a fair representation of how you would have wanted your belongings and assets distributed.

In some States and Territories your spouse or partner will get your entire estate. In other States and Territories, they may only get a portion of it and the balance would go to your children or if you have no children, other relatives.

If you die and have no spouse, partner or children, your estate might be shared among, parents, siblings, grandparents or other relatives. If no such family exists it may just be forfeited to the government.

If you die without leaving your preferences for whom you would like to be the adult guardian of any children under 18 who are left without a parent, one will be appointed under the laws of the State or Territory in which they live, and this person may not be the person you would have chosen to bring up your children.

Furthermore, if you do not rely on a comprehensive Will that provides the option for testamentary trusts, your loved ones miss out on the long term and highly valuable personal benefits and financial protections that can never be obtained after you die if the correct provisions are not included in your Will before you die. Will Wizard® does all of this and more.

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Who is allowed to make a Will?

A person who is over 18 years of age and has legal capacity can, and should, make a Will. This is especially true if they have family responsibilities like children of their own, or children they care for, or if they have assets such as a home, investments, super, an inheritance or similar.

A person who does not have legal capacity cannot make a valid Will.

Legal capacity means a person can show that they fully understand and can communicate their decisions to others.

People without legal capacity may have brain damage, a mental illness, a degenerative disease such as Alzheimer’s Disease, a genetic condition such as Down’s Syndrome, have suffered a damaging stroke, may be affected by drugs or be of such advanced age that they no longer are able to understand or communicate their decisions adequately.

If you are assisting someone to make a Will, and you are unsure of their legal capacity you must seek legal advice first. If it is determined that a person did not have legal capacity at the time of making their Will, their Will would be determined to be invalid.

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Can I have more than one Will?

No, any new valid Will you make will usually cancel any Will you have made previously.

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However, if you own assets outside of Australia there can be tax advantages to having a Will that deals with your assets in Australia and one that deals with assets outside of Australia. This is an issue you would need to discuss with a qualified estate planning solicitor.

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Do I need to speak with a solicitor before making my Will?

No, you don’t.

The law does not require you to speak to a solicitor before making your Will. 

However, we always encourage our customers to seek professional legal advice if your circumstances fall outside of what we consider appropriate for our Wills. 

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Can I share my Will with my spouse or partner?

No, you must each have your own Will.

Will Wizard® provides couples with their own separate Wills at no extra cost.

A couple’s Wills mirror each other in terms of their nominations (i.e. your beneficiaries, Executors and guardians) to ensure that the wishes of both people are ultimately met, and it does not come down to who dies first.

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When should I update my Will?

While the benefits provided by Will Wizard® can last up to 80 years from your death, it is important that you review your Will whenever you have a major change in your personal or asset circumstances. For example:

- If you marry or intend to marry;
- If you separate from your spouse/partner;
- If your spouse or partner dies;
- If there is a major change in your financial position.

It is sensible to review your Will every 3 to 5 years to make sure that it still best represents your wishes and circumstances.

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Is my Will still valid if I get divorced?

No, all Australian Wills become invalid if you get a divorce and you must redo your Will at this time. 

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Is my Will still valid if I get married?

A new marriage revokes any Will you have made, and you will need to make a new Will. The one exception is if your Will was made just prior to your marriage and the Will expressly states that the Will has been made “in contemplation of marriage”.

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For all de facto couples, Will Wizard® states ‘in contemplation of marriage’ so that you do not have to update your Wills if you decide to get married.

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Is my Will still valid if I have another child after making my Will?

Yes, your Will is still valid if you have additional children and have left your estate to them in equal shares. Will Wizard® has inbuilt flexibility to account for the possibility of additional children in your future.

However, if you have left your estate to your children in unequal shares you would need to make a new Will.

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What happens if I adopt a child after making a Will?

If you adopt a child and have left your estate to your children in equal shares then there is no need to update your Will. Will Wizard® has inbuilt flexibility to account for the possibility of additional adopted children in your future.

However, if you have left your estate to your children in unequal shares you would need to make a new Will.

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What happens if I foster a child after making a Will?

Will Wizard® does not automatically recognise foster children and they would not receive a share of your estate as an inheritance unless you specifically list them as a beneficiary in a new Will, or attach a codicil to your current Will. A codicil is an addition or supplement that explains, modifies, or revokes a Will or part of one.

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What happens if I gain a step-child after making a Will?

Comprehensive 'Testamentary Trust' Wills from Will Wizard® do not automatically recognise stepchildren and they would not receive a share of your estate as an inheritance unless you specifically list them as a beneficiary in a new Will, or attach a codicil to your current Will. A codicil is an addition or supplement that explains, modifies, or revokes a Will or part of one.

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What happens if a primary beneficiary of my estate dies before I do?

If a primary beneficiary dies before you do, their portion of your estate will be split between any direct descendants they leave behind (i.e. their children or grandchildren). If they leave no direct descendants, their portion is then split equally among the remaining primary beneficiaries or the remaining primary beneficiaries’ direct descendants.

If no primary beneficiaries and no direct descendants remain, then your estate is divided equally between your chosen ‘back up estate distribution plan’. 

This plan either represents both your parents and siblings (of both you and your spouse or partner if you are married or in a de facto relationship) or the alternate primary beneficiaries you have nominated as your ‘back up estate distribution plan’.

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What happens if my executor dies?

Will Wizard® is all about planning for the worst. This is why we always have a back-up plan in place. When nominating your executor, we always make sure you also nominate a second choice executor in case your first choice executor dies, or is unable or unwilling to accept the responsibility.

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What happens if the person I have nominated to be the guardian of my children dies?

Will Wizard® always plans for the worst. This is why we always have a back-up plan. When nominating your guardian of young children, we always make sure you also nominate a second choice guardian in case your first choice guardian dies, or is unable or unwilling to accept the responsibility.

Keep in mind that any choice for a guardian is subject to Court approval, with the Court having final say on who is to be the guardian of your children who are under 18 at the time of your death.

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What happens if a witness dies?

The death of a witness has no bearing on the validity of your Will. There is no need to update your Will if a witness dies.

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Can I change my Will after it is signed and witnessed?

You can, but as there are signing and witnessing formalities. If you get it wrong or make a mistake it may invalidate your Will, or cause delays and added costs in the grant of probate. Always seek professional legal advice.

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Do Wills from Will Wizard deal with discretionary family trusts (non-fixed trusts)?

 

Yes. Our Wills include a clause that provides your executors with the authority to assume control of any non-fixed trusts or the shares in non-fixed trusts you may have at your death and instructs your executors to then pass effective control to your primary beneficiaries. However, whether the discretionary trust can be transferred via the Will depends on the terms of the discretionary trust. Not the terms of the Will.

If you are the trustee of a discretionary trust and are unsure of whether the terms of your trust allow for your executor to assume control over the trust on your death, seek independent legal advice.

 

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