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To Will or Not to Will; That Is the Question?

By: Maggie Orczykowski February 7, 2017 no comments

To Will or Not to Will; That Is the Question?

“My husband and I own everything jointly, so he will get it all anyway and will look after the children.”

“I’ve spoken to my children about how I want everything divided, they will sort it out when the time comes.”

“I don’t have any children, I’m not married, I’m young – I don’t need a Will do I?”

Many people often question or find excuses why they do not need to prepare or have a Will in place.  A Will is a legal document or declaration that sets out how you would like your assets to be dealt with following your death and to whom (and in what share) you would like those assets given.

Your assets comprise everything you own at the time of your death.  They include any real estate you own (whether jointly with another person or solely in your name), your car, your savings accounts, superannuation, life insurance policies, shares, jewellery, antique furniture and any other property you might own at the time of your death.  Having a valid Will in place is the only way to ensure your assets are distributed in accordance with your wishes and direction following your death.

Having a valid Will in place, which outlines your wishes and directions, is important, as these things are unable to be discussed with your following your death.  Having a valid Will in place reduces the possibility of the document being challenged, either on the grounds that you did not have capacity to make the document in the first place or based on aspects of technicality.  Furthermore, it reduces the possibility of a claim being made against your estate by persons who have not been included in the Will for one reason or another.  Of course no document can be drafted offering a 100% guarantee that it will not be challenged, but by engaging one of our experienced solicitors to prepare your Will for you the possibility of such an action is considerably reduced.

There are certain times in your life when it is particularly important to make a new Will or revise your existing one, such as:

  • MARRIAGE
  • SEPARATION
  • DIVORCE
  • IF YOU HAVE CHILDREN
  • WHEN A PERSON ALREADY NAMED IN YOUR WILL DIES OR BECOMES INCAPACITATED.
  • IF ONE OR MORE OF YOUR EXECUTORS DIES OR BECOMES INCAPACITATED.
  • IF ONE OR MORE OF YOUR BENEFICIARIES DIES.

A Will can contain a variety of clauses, directions and wishes.  The most common clauses contained in a valid Will are:

  • A REVOCATION CLAUSE WHICH REVOKES ANY PREVIOUS WILL MADE BY YOU AT ANY TIME.
  • A CLAUSE APPOINTING A PERSONS OR PERSONS INTO THE ROLE OF EXECUTOR.
  • A CLAUSE OR CLAUSES THAT DEAL WITH YOUR ASSETS AND HOW THEY ARE TO BE DIVIDED AND DISTRIBUTED AND TO WHOM.
  • STANDARD CLAUSES WHICH GIVE CERTAIN AUTHORITY AND POWERS TO YOUR EXECUTOR/S.

Therefore, whilst you and your partner may own assets jointly your Will can outline who is to receive your assets should you and your partner die together or within close proximity to one another. You can include provision for a Guardian to be appointed to care for any children you have under the age of 18.

Whilst you may have discussed the division of your assets with your children but did not write these into a formal Will; your children are not legally bound to following those instructions and directions.

Our solicitors have experience in drafting Wills which cover your specific wishes and directions and by engaging our firm we will ensure that your personal circumstances are discussed and a Will tailored towards your needs and wishes.

 

DISCLAIMER: This article contains general information about legal matters.  The information is not advice, and should not be treated as such.  The legal information contained in this article is provided “as is” without any representations or warranties, express or implied.  Boland Legal makes no representations or warranties in relation to the legal information contained in this article.

Professional assistance

You must not rely on the information contained in this article as an alternative to legal advice from your solicitor or other professional legal services provider.    If you have any specific questions about any legal matter you should consult your solicitor or other professional legal services provider.

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