Things To Consider When Writing A Will

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This To Consider When Writing A Will

Written by: Karlene Wightman l Legal Team


Nobody likes to go into an appointment unprepared, especially when it is an appointment that can determine the outcome of your Estate and all of your hard-earned work over the course of your life.  By taking the time to think about and consider these important factors before starting the process of writing your Will, will make the process as pain-free as possible.

One of the most common questions that we are asked when a person makes an appointment to make a Will is “What do I need to think about when drafting a Will?”  In this article, we will go through the most common questions that you will be asked when attending an appointment to draft your Will so that you can be prepared and have enough time to take into consideration the most important things to cover off.

Important as they are, we understand that Wills are only one component of what should be much broader life planning – and that planning should begin as early as possible.  We also understand that life is busy and you’re not thinking about what’s going to happen to your assets when you pass away, but that is where our team come in to help and better yet, make it easy!  Our team are here to make the first steps of your life planning journey easy to understand and even easier to tick off your to-do list with tailored advice to suit your needs and your situation.

These are the most important things that you need to have considered when writing a Will…

Your Will + Legal Questions To Consider

  • Personal Details

The first thing that most lawyers do when taking instructions for a Will is to gather preliminary information about yourself and your family.  We need to know if you are married/defacto, do you have any children or step-children and any other personal information that is relevant to the discussion.

At first glance, it may not seem relevant, especially if you are not intending to provide for a certain person(s).  However, it is important that we have an overview of your entire situation so that we can advise you correctly and determine what type of Will you should have (simple, testamentary trust or special disability trust or a combination).

  • Assets

The second thing we will do is gather details of your assets.  This is also relevant in determining what type of Will you should have.  It also prompts a discussion about your superannuation and whether or not you have completed a binding death benefit nomination.

We will also ask you whether you have any companies, family trusts or self-managed superannuation funds.  While some of these asset structures do not technically form a part of your Estate, it is important to have knowledge of these asset structures so that we can provide the necessary estate planning advice, as opposed to simply drafting a Will and having it signed.

  • Executors

Often, the first decision to make in relation to your Will (whether it be simple, testamentary trust or special disability trust) is who is going to be the executor of your Will.

The executor can have a number of roles, but primarily an executor is responsible for carrying out the terms of the Will.  With the assistance of a solicitor, the Executor will call in all the assets (close bank accounts, sell or transfer shares, sell or transfer property) and then distribute the assets to the beneficiaries in the proportions set out in the Will.

Your personal circumstances are an important factor in determining who should be an executor.  You can appoint up to four people, who are all able to accept the role when the time comes.  When choosing an executor(s), you might want to consider the following:

  1. Is the Estate going to be straightforward?
  2. Do you have a blended family?  In these cases, some people like to have a representative from both families, while others do not.
  3. Are you providing for all family members who have a right to be provided for?  These people are generally spouse/defacto spouse, children and step-children.  If any of these people are not provided for in your Will, there is a possibility of a challenge against the Estate which the executor would need to be involved in.
  4. Are any of the beneficiaries minors?
  5. Are you creating a testamentary trust or a special disability trust in your Will?

If the Estate is not going to be straightforward, this can affect who you may wish to appoint as executor.

While the Executor does not need to sign any formal acceptance, it is recommended that you speak with the person(s) that you wish to appoint.  If they were not aware of their appointment when you pass away and ultimately choose not to accept the role, this can have significant consequences for your estate administration.

  • Specific Gifts

Another question that your lawyer will often ask is whether there are any specific gifts that you wish to leave anyone.

Specific gifts can be things such as jewellery, cars or even a gift of property.

  • Guardians

An important question for many parents of minor children is whether they can appoint a guardian for their children in their Will.  The answer is yes!

Choosing a guardian can be overwhelming and a decision that should not be taken lightly.  The guardian can be the same person(s) as the Executor or beneficiaries, a mixture of both or someone completely different.

It is the Executors who are responsible for looking after the assets of the Estate for any minor children until they attain the age you have selected in your Will.  The Executor can use the money for the benefit of the minor children if they believe the expenditure is being used for their proper maintenance, support or advancement in life.

Our Wills also provide that the guardians can use the assets of the Estate for certain expenditures, such as buying a new car if this is required for the care of the children, upgrading or renovating a house, or family holidays.  It is sometimes worthwhile having a person separate from the guardian in control of the money so that there are checks and balances in place, but this is very dependent on personal circumstances.

  • Residue

One of the ultimate questions is “Who is going to receive the residue of the Estate”.  The residue is anything that is left in the Estate after any specific gifts have been dealt with.

This is where we also discuss what type of Will is needed in the circumstances, such as a testamentary trust or a special disability trust.  Other articles have discussed in detail the benefits of these structures, but your personal circumstances and family circumstances will ultimately determine which Will we recommend.  An open discussion between us and yourself is extremely important so that we can structure your affairs to suit the needs of your family.

  • Funeral Arrangements

We also ask whether you have specific wishes for your funeral.  The direction in your Will is ultimately an expression of your wishes and is not binding on your executors.  Your executors have the final say as to what happens when you die, but more often than not, these wishes are followed.

Canny Legal + Your Estate Plan

Taking that first step and making an appointment with a lawyer can often be overwhelming.  Having an idea of what will be discussed in the appointment will hopefully enable you to be prepared for the appointment but also put your mind at ease and not be surprised by any questions that are asked during the appointment.

Get in touch with our team today to have a chat about your Will and your Estate Plan.

Canny Legal + Your Online Will 

Canny Legal also offers Online Wills if your circumstances are straightforward.  You can jump across to our website and the questionnaire will go through all of these questions outlined above to be able to determine the best option for you and your circumstances.  If you are able to complete your Will online, it will then be sent and checked by one of our lawyers, followed by a phone appointment to go over any questions you may have before being sent to you for signing.  This option takes the pressure off busy individuals who want the flexibility of sitting down at any time of the day or night.

Pictured, Special Counsel Karlene Wightman standing with one hand on her hip wearing a vibrant pink dress


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