Approximately half the population do not have a Will. For most, they understand the importance of getting their Will done and what can happen if you don’t have your affairs in order – it’s usually a matter of just not getting around to it yet. However, for others, the thought of doing a Will can be overwhelming and they simply don’t want to think about their own mortality or feel that writing a Will is “taboo”. Whether you like it or not, immortality is not an option, and we cannot ignore the fact that one day our time will come. Attwood Marshall Lawyers Wills and Estates Lawyer, Xara Coassin, cuts through the taboo by explaining the estate planning process to show just how straightforward and simple it can be.
Introduction
It is understandable that for many people, the thought of writing their Will can be overwhelming. After all, they are being asked to consider their own death and how that may affect their loved ones. Trying to please everyone, even after your death can stir up a lot of emotions leading to indecision and putting off the Will making process.
Everyone’s family situation is very personal and unique. From people who may have had a falling out with their children and are now estranged, to people who have remarried later in life and have complex family dynamics, there can be a lot of confusion and uncertainty as to how to ensure you look after your loved ones and pass on your assets after you are gone.
Despite your unique family and personal situation, the process remains relatively the same and is straightforward. We understand it can be an emotional process which is why at Attwood Marshall Lawyers, we make the process as easy as possible for you.
An experienced estate planning lawyer knows how to quickly and easily pinpoint their client’s main concerns and walk them through the estate planning process so that a Will can be executed effortlessly, leaving you with a document you can depend on.
Step 1: Getting to know you
The first step in the estate planning process is to complete a fact-finding questionnaire. This provides an estate planning lawyer valuable insight into the client’s unique situation including understanding their family structure, the assets they own, and the liabilities they have.
A questionnaire completed in your own time prior to your initial appointment with a lawyer assists the lawyer in understanding a little bit about your unique family structure as well as the nature of your estate. This maximizes your time with your lawyer – utilising the time to discuss your estate planning goals, which will help your lawyer identify the best strategy to suit your needs. This initial consultation usually takes between 30-60 minutes depending on the complexity of the estate.
What type of questions will the lawyer ask?
The main areas to cover will be discussing your family structure, such as who’s who in your family, what you own and how you own it, and any debts you may have.
You will also need to consider who you want to benefit from your estate. A lawyer will need to note your intended beneficiaries, including their full names, and contact details. The same details will be required for who you want to choose to be your executor.
Family Structure
So that your lawyer can properly advise you, they will typically ask you questions such as:
- Are you single, in a relationship, or divorced? etc
- Do you have children or stepchildren?
- Do the children live with you?
- Do your children have special needs?
- Do your children have children of their own?
- What are your children’s financial situations?
- Do you have any ‘black sheep’ in the family that you are not providing for?
Assets and Liabilities
Some of the main questions you may be asked about your assets and liabilities include:
- What assets do you hold?
- What is the value of those assets and if there is a mortgage?
- How are the assets held? (For example, as tenants in common, joint tenants, in a trust, partnership, or company, or held within your superannuation).
- Do you run a business?
- Do you have any trusts?
- Do you have superannuation and a BDBN?
This is important information to gather as how assets are held will determine whether or not those assets can be included in your Will, or if additional tools and strategies will need to be adopted to pass on these assets after you are gone.
Beneficiaries and Executors
Once you have discussed your family structure and assets and liabilities, , you will then need to consider to who you want to leave your estate. This may include your immediate family, or you may have specific wishes to leave a gift to a charity or an alternative beneficiary.
You will also need to appoint an executor in your Will. An estate planning lawyer will ask who you wish to appoint, which may be more than one person.
This is one that people don’t often give too much thought to and many people choose to nominate their next of kin, or their children by default. However, this is where a lawyer can give some advice about who the most appropriate or logical person to appoint may be.
A lawyer will also shed light on what may go wrong or what other considerations are important when choosing someone to be your executor.
It is important to consider the following when appointing an executor:
- Do all executors get along? (If appointing more than one)
- Where does the executor live?
- Is the person being appointed someone who would be happy to take on this role?
- Would it be more appropriate to appoint a professional to avoid conflict among family members?
It is important to appoint an executor who will be able to fulfil their duties effectively in a timely manner. If disputes arise, it can be devastating for the administration of the estate and the consequences can be increased stress on all parties involved and delay to the administration process. Choosing the right executor is a very important decision.
What advice does a lawyer give someone drafting their Will, that they wouldn’t otherwise get if they tried to draft it themselves?
When getting a Will drafted by an estate planning lawyer, a client can expect to receive advice around their obligations as a Will maker – that is – who do they have to provide for under their Will to avoid what is called a ‘Family Provision Claim”.
Only a certain class of beneficiaries are eligible applicants to make a Family Provision Claim on a deceased estate – and this can differ depending on which state or territory the client resides in.
Generally, a testator must provide ‘proper and adequate provision’ for their spouse, children, dependants, and in some states (including Queensland) stepchildren.
It is important for a lawyer to advise on ways to mitigate the risk of someone contesting the Will, particularly when a parent no longer has a relationship with their adult children and decides not to include them as a beneficiary.
Although a person may still choose to leave certain relatives out of their Will, it is important that they understand the ramifications of doing so and what rights those family members may have to claim on the estate.
Discussions around property ownership can also be an important topic. A lawyer may provide advice around severing a joint tenancy to preserve an asset for a Will-maker’s intended beneficiaries. This is especially the case if the Will-maker lives in NSW where notional estate applies and a failure to sever a joint tenancy can be found to fall within the notional estate and essentially be clawed back into the estate.
An estate planning lawyer will be able to provide advice to ensure the best chance of success in fulfilling a Will-maker’s testamentary wishes and ensuring gifts do not fail.
No two estate plans are the same, which makes the fact-finding stage a vital step to ensure your lawyer has an accurate understanding of your situation to be able to properly advise on how to achieve your estate planning objectives.
Step 2: Drafting the document
This step is left to the lawyer. An experienced estate planning lawyer understands the structure and terminology that must be used in a Will to ensure it is unambiguous and will hold up if ever challenged.
Now that your lawyer has a comprehensive understanding of your unique situation and your intentions, they will draft the document. Once drafting is complete, a copy of the Will is then sent to you to review, and if no further changes are required, the final step is to sign the document and store it safely.
Step 3: Sign and store
It is important to note that until your documents are signed, they are not binding and will not come into ‘legal’ effect. The Will-maker makes a second appointment with the lawyer. During this appointment, the lawyer will walk you through the clauses in your Will and confirm that your wishes have been documented correctly and that you understand the document.
Once this review is complete, you can then sign your Will. The law requires your will to be witnessed by two witnesses for it to be valid. i.e. usually your lawyer and a second staff member at the firm, sign each page as a witness to verify that the document is genuine, and the Will-maker’s signature is genuine. It is important to note that a beneficiary in someone’s Will cannot and should not sign as a witness.
Once signed, the Will-maker will be provided with a copy of their Will and the original Will can then be stored safely at the law firm. Attwood Marshall Lawyers offer all their estate planning clients the opportunity to store their Will in our special built saferoom as part of the service free of charge. This ensures that your original Will is kept safe and you do not need to worry about it getting damaged or losing it. Your Executors will require the original Will to apply for Probate.
Attwood Marshall Lawyers – helping you plan for the future and preserve your wishes
Writing a Will can be a quick and simple process when you are supported by an expert. It starts with an initial conversation, then the lawyer takes care of drafting your instructions and documenting them in a legally binding and formal way. Then you just have to sign the document and have it stored safely.
Our team take great pride in putting our clients’ minds at ease and guiding them through the process, actively listening to their concerns and intentions to ensure the most effective plan is put in place.
There’s no need to find another excuse to postpone getting your Will done. Set aside 30-60 minutes to discuss your intentions with one of our experienced estate planning lawyers so that you can have peace of mind that your legal affairs are in order.
If you need assistance drafting a Will, Enduring Power of Attorney, or simply want to better understand what estate planning documents you should consider having to ensure your best interests are protected, contact our Wills and Estates Department Manager, Donna Tolley, on direct line 07 5506 8241, email dtolley@attwoodmarshall.com.au or free call 1800 621 071 any time.
You can visit our experienced team at any of our conveniently located offices at Robina Town Centre, Coolangatta, Kingscliff, Brisbane, Sydney or Melbourne.
Read more:
Pitfalls of do-it-yourself (DIY) Enduring Powers of Attorney – don’t risk getting it wrong!
Ambiguous Wills and the trouble they cause
Jointly owned assets and estate planning – the difference between ‘joint tenants’ and ‘tenants in common’ for property and jointly owned assets explained
