Many of us just don’t think about dying. However, as they say, there are only two things certain in life – taxes and death!
It is important to prepare a Will to make sure that your estate is left to people you care about. Even if you think you have nothing to leave to any one, it’s always best to have a Will.
In the event you die without a Will (you die “intestate”), your estate will be distributed using a formula, which has been enshrined in legislation, by the government and contained in the Administration Act 1903. The terms of the Administration Act apply regardless of your situation.
What is a Will?
A Will is a legal document that sets out how your property is to be divided after your death. Under the Will, an executor is appointed who will look to administer your estate. The executor must:
- Collect all your assets.
- Pay all your debts.
- Distribute your estate in accordance with the terms and wishes as stated in your Will.
A Will does not come into effect until after you die, so it is important that any Will is carefully considered.
How do I make sure my Will is valid?
The laws governing the legal requirements for preparing a valid legal Will vary from state to state. In Western Australia the laws are governed by the Wills Act 1970. However, in all states you must:
- Have testamentary capacity – be over 18 years old and understand what you are doing.
- Ensure that your specific wishes are in writing – telling someone verbally what you would like to happen once you are no longer here, is not enough, and
- Have your Will signed in the presence of two witnesses in order for your Will to be valid.
Why should I make a Will?
As mentioned earlier, if you do not have a Will when you die, your estate is distributed pursuant to the Administration Act. However, if you make a Will:
- You get to decide how to divide your estate between family, friends and charities.
- You choose who you wish to administer your estate.
- You choose your preference as to a guardian for any children who are under 18 years at the time of your demise.
Marriage, Divorce and Wills
In Western Australia, unless a contrary intention appears in a Will, a marriage and/or a divorce nulls and voids any Will.
However, you may make a Will in contemplation of a marriage and you can have a clause in a Will that states that your Will survives any divorce or the particular section of the Wills Act does not apply.
How much will it cost?
The cost of drawing up a Will depends on how you decide to do it. Ideally you should see a lawyer because they will know the common traps and will ensure you avoid them. Lawyers inevitably ask you questions you would never have considered and they can discuss some of the financial implications for your surviving family members.
DIY kits/Online Wills have been labelled by the courts as “a curse”. Generally speaking, unless it is a very simple Will, DIY/online Wills are not recommended.
Speak to one of our experienced lawyers regarding your Will.
