Do I need a will?
It depends on what you want to happen after you die. If you do not have a will, the distribution of your estate is governed by the rules of intestacy. In the ACT, those rules are found in the Administration and Probate Act 1929 (ACT). In general, the first $200,000 is paid to your spouse plus 50% of the balance. The other 50% is paid to your children (if any).
If you have a will, the distribution of your estate is governed by the terms of your will.
Top Ten Things to Consider When Making a Will
Your beneficiaries are those who will inherit your estate assets when you pass away. You should also consider substitute beneficiaries in the event your primary beneficiaries do not survive you.
Your executors are appointed to administer your estate in accordance with your Will. You may appoint your primary beneficiaries or someone else you trust.
You can gift specific belongings to certain people. You may also prepare a list of personal belongings to accompany your Will if you have yet to decide what to gift and to whom.
Properties owned jointly do not form part of your estate. It will immediately be transferred to the other owner upon your passing.
You may express whether you would like your organs to be donated. You may also specify whether you wish for your organs to be donated to the body of a living person and/or for medical research purposes.
Disposal of your Body
You may express how you would like your body to be “disposed of”. Common choices include burial or cremation.
If you have minor children, you should appoint guardians for your children in the event their other parent or guardian does not survive you.
Contemplation of Marriage
Wills are effectively revoked upon marriage or divorce. If you contemplate marriage with your partner, you may express in your Will that it is in contemplation of that marriage.
Superannuation is a non-estate asset, and therefore cannot be managed by your Will. You may need to complete a Binding Death Benefit Nomination to ensure that your super is paid out to your chosen beneficiaries.
Enduring Power of Attorney
An Enduring Power of Attorney appoints a person you trust to manage your property, personal care, health care and medical research matters in the event a medical practitioner observes that you have lost your decision-making capacity. FGD can also assist in drafting an Enduring Power of Attorney along with a Will, in the form of a package.
The most common questions around wills are answered below.
It depends on what you want to happen after you die. If you do not have a will, the distribution of your estate is governed by the rules of intestacy. In Victoria, those rules are found in the Administration and Probate Act 1958. Who gets what depends on your circumstances including whether you have a partner, whether you have children and whether those children have received other property from you.If you have a will, the distribution of your estate is governed by the terms of your will.
Should I see a professional to make my will?
Again, it depends. If you want the safety and security of knowing that your will is going to be effective and distribute your estate according to your intentions, then it is recommended that you retain the services of a professional to draft the necessary documents. But an estate plan is more than a will. You also need to consider a power of attorney, your superannuation death benefits and insurance. Do-it-yourself will kits do not provide a comprehensive estate plan. If the wording of your will is not clear (and bear in mind this is a very technical area where the words you use may be interpreted by a court to mean something other than what you actually intended), it could cost your estate thousands of dollars in legal fees to obtain a ruling from the Court on the true meaning of the will.
In addition, some of your assets may not fall into your estate on your death and your will may not reflect your true intent. Joint assets, assets in a family or discretionary trust, life interests, pensions, annuities and superannuation proceeds may not form part of your estate depending on circumstances. A solicitor experienced in estate planning will be able to give you advice on which assets will fall into your estate.
Do I ever need to change my will?
Major life changes such as entering into marriage or a de facto relationship, separating, divorcing or retiring may all necessitate changes to your existing will. Changes in the relationships of your children is another important consideration. Marriage always cancels any previous will unless that will specifically states that it is made in contemplation of the marriage. Separation or divorce does not cancel your will but divorce will, in most circumstances, cancel any gifts to your former spouse. There is no need to change your will simply because you change your address, although you should notify whoever is holding your original will of your new address.
Are there any other government fees or death duties?
There are no death duties in Australia. However, capital gains tax may be payable by your estate on the transfer of title of assets with a CGT liability. It is advisable to consult a solicitor experienced in estate administration before you dispose of major assets in an estate.
It is a document issued by the Supreme Court proving your last will, thus empowering your executors to carry out the terms of your will.
When is probate required?
Generally, if you own real estate (other than jointly with your spouse or any other person), or have other significant assets in your own name such as shares, debentures, money in financial institutions or life assurance policies. However, in small estates the assets may be able to be transferred without probate if there is no real estate involved.
Can anyone challenge my will?
In the ACT, the Family Provision Act governs who and the circumstances in which a will can be challenged. In general, challenges may be made by a person if they have cared for you or contributed to your maintenance during your lifetime and you made no or insufficient provision for them in your will.
This is a technical area and your solicitor can advise you further if you are contemplating leaving someone out of your will who could later challenge your will.