Will Drafting
What a will usually needs to cover
A will usually deals with the distribution of property after death, the appointment of an executor, and certain family care arrangements.
Common matters include:
- appointing an executor;
- setting out how the estate is to be distributed (who inherits, under what conditions, or at what time);
- specifying that particular assets are to be inherited by particular people;
- arranging guardianship or property management for minor children;
- dealing with personal belongings, keepsakes, or special items of property;
- considering whether to establish a testamentary trust;
setting out substitute beneficiary arrangements, in case a beneficiary dies before the will-maker.
The more clearly a will is drafted, the easier it usually is for the executor and beneficiaries to deal with the estate later on. Conversely, if a will is vague, or fails to take account of the family’s actual relationships, it can increase the risk of differing interpretations and disputes.
Choosing an executor
The executor is responsible for administering the estate after the will-maker’s death, including collecting in assets, paying debts, applying for a grant of probate, communicating with banks and institutions, and distributing the estate to the beneficiaries in accordance with the will.
An executor needs to be trustworthy and also capable of handling practical matters. The choice of executor is particularly important for estates that are larger, that involve complex family relationships, that may be subject to dispute, or that include overseas assets.
If the executor is unsuitable, unable to carry out their duties, or has a clear conflict of interest with the beneficiaries, the administration of the estate can become more difficult.
Complex family relationships
Blended families, de facto relationships, children from a previous marriage, stepchildren, children with special needs, and family members who are financially dependent over the long term can all make a will more complex to arrange.
For example, a person may wish to provide for their current spouse while also protecting the interests of children from a previous marriage; they may also wish for a particular child to inherit a specific asset, yet be concerned that other family members might raise a dispute later on. If arrangements such as these are dealt with in only a few simple sentences, they can easily leave room for differing interpretations.
When drafting a will, it is necessary to consider, at the same time, the family’s relationships, the structure of the assets, potential disputes, and the claims that relevant parties may later seek to make.
When a will needs to be updated
After a will has been signed, family relationships and financial circumstances will continue to change.
It is generally advisable to review a will if any of the following occurs:
- marriage, divorce, separation, or entering into a new relationship;
- the birth of a child or the death of a family member;
- buying or selling property;
- setting up a company or family trust, or starting a business;
- a change in superannuation beneficiary arrangements;
- wishing to change the executor;
- a significant change in your relationship with a beneficiary;
the existing will has not been reviewed for a number of years.
A will that has not been updated for many years can end up out of step with your current family and financial situation. NS Legal can assist you to review your existing will and arrange for it to be updated to reflect your present circumstances.
The value of having a lawyer draft a will
A will must comply with the relevant signing and witnessing requirements, and must also express your wishes in a clear and workable way. Writing a will yourself, or using an overly simple template, may not adequately deal with complex family relationships, superannuation arrangements, overseas assets, testamentary trusts, substitute executor arrangements, or potential disputes over the estate.
When a lawyer drafts a will, they take into account the client’s family structure, financial situation, and actual objectives, and help to determine which matters should be set out in the will and which should be dealt with through other documents or arrangements — for example, a power of attorney, the appointment of an enduring guardian, a superannuation beneficiary nomination, or arrangements for control of a family trust.
Once a will has been completed, it should also be kept safely, and the executor or a trusted family member should know where it is stored. If a will cannot be located, or only an unsigned version can be found, this can create difficulties for the later administration of the estate.
How NS Legal can help
NS Legal can assist clients with the drafting, review, and updating of wills, and can provide legal advice appropriate to each client’s particular circumstances.
We can assist clients to:
- draft a new will;
- review and update an existing will;
- choose a suitable executor;
- design beneficiary and substitute beneficiary arrangements;
- deal with blended families, stepchildren, and complex family relationships;
- consider arrangements for minor children and beneficiaries with special needs;
- assess whether a testamentary trust is required;
- understand the relationship between a will and superannuation, family trusts, and company assets;
- ensure that the signing and witnessing of the will meets the requirements;
assist with arranging the safe storage of the will.
Through clear and effective will arrangements, clients can express their wishes with greater confidence, and their family can have a clearer basis to work from when dealing with the estate later on.
Frequently Asked Questions
Can I write my own will?
You can, but drafting a will yourself can easily give rise to problems with the form of signing, the wording, the scope of assets, the appointment of an executor, or the beneficiary arrangements. If a will is invalid or unclear, dealing with the estate later on may involve higher costs and disputes.
Can I specify in my will who is to care for my minor children?
You can express in your will who you would like to care for your minor children, and set out how any property they inherit is to be managed. For families with minor children, a will usually needs to address both guardianship arrangements and property management arrangements.
What should a blended family keep in mind when making a will?
A blended family usually needs to consider, at the same time, the current spouse, children from a previous marriage, children of the current relationship, and the possible risk of a family provision claim. Simply writing “everything to my spouse” or “everything to my children” is not necessarily suitable in every situation, and arrangements should be designed specifically around the family’s relationships and asset structure.
Where is the best place to keep a will once it has been signed?
A will should be kept in a safe place where it can be found, and the executor or a trusted family member should know how to obtain it. The original will is usually very important, and if the original cannot be located later on, the administration of the estate may become more complicated.
How often should a will be updated?
If your family relationships, asset structure, or personal wishes change, you should review your will promptly. Even where there are no major changes, it is advisable to check it periodically to confirm that the executor, beneficiaries, and asset arrangements still suit your current circumstances.
Need legal help? Contact NS Legal
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