Creating a Will Is Easy With Us!

Yes, you read that right! Creating a Will is easy with our Wills and estate planning lawyers. But why is it important to write this legal document with a lawyer? Can’t you just make one on your own? While that is entirely possible, your Will may miss a lot of legal requirements and cause many problems for your loved ones.

Your loved ones may eventually contest or challenge a Will. Even more problems can arise when you don’t have a Will at all! No Will-maker would want their loved ones to fight over inheritance and other assets of the estate because of a poorly prepared Will. So let us start protecting your assets today and provide for your loved ones safely.

But Creating a Will Is Just for the Rich, Right?

Absolutely not! Whether you have a simple or complex estate, it’s important to create a valid Will that properly administers and distributes your estate. Any estate is valuable for a Will-maker if they want a beneficiary to receive it. So, you shouldn’t think that only the rich can write a Last Will and Testament.

Okay, What Do I Need To Start When Creating a Will?

Let’s get you started with creating a Will. First things first, you should know if you are eligible to make one. Check the legal requirements below if you meet them all:

• Over 18 years old
• Married
• Have the testamentary capacity or mental capacity to make a Will. This means you know the extent of all your assets and are aware of the people who will benefit from your estate. Most importantly, mental illnesses or impairments won’t prevent you from making rational decisions on who will benefit from your Will.

So, you need to be old enough and mentally healthy enough to prepare your Will. Married people are eligible to make a Will since their next-of-kin will be the first in line to receive inheritance from a Will.

Do you meet all the legal requirements? If you do, we can proceed with the checklist you need when creating a Will. 

Your House, Your Dog, and Everything in Between

Let’s talk assets. Assets are anything you own that has value or that can be passed down to your beneficiaries. Yes, this includes your limited edition toy collectibles, your cars, and even your pet! To prepare what you need to place in your Will, you need to create an effective estate plan with a lawyer. 

An estate plan is the process of managing and disposing of a Will-maker’s assets after their death. However, this can also take effect during their lifetime if, for example, they become incapacitated. An effective estate plan aims to:

1. Appoint a person with powers of attorney or guardianship to manage your finances in case you become incapacitated. You will also need an executor who will handle your estate and associated trusts after your death. 
2. Nominate beneficiaries accurately and protect beneficiaries. Creating a Will with an effective estate plan will also protect vulnerable beneficiaries and prevent unintended asset distribution to estranged partners and creditors. 
3. Reduce the chances of family provision claims and any other unnecessary expenses. 
4. Allow unique asset distribution that meets the needs of your beneficiaries throughout their life.
5. Employ smart tax planning to minimise capital gains and income tax payable by your beneficiaries on their inheritance, thereby preserving more of your estate’s value.
6. Sustain whatever business or investment you own.

Many people forget how important an effective estate plan is when creating a Will. Some simply just state that their house goes to their surviving spouse and children. But what if the surviving spouse remarries and uses their inheritance with their new spouse/de facto partner and children? This leaves the Will-maker’s biological children begging for scraps or worse, zero inheritance.

How can we prevent such disheartening instances? We can use a testamentary trust

The Power of Testamentary Trusts

A testamentary trust is a powerful tool to protect a Will-maker’s assets. Remember the example we used recently? This trust can prevent that from happening.

After a Will-maker’s death, if they established a testamentary trust in their Will, their assets will transfer to a trustee or public trustee. These trustees will hold these assets on behalf of the beneficiaries and will only give it to them under certain times and conditions.

So, if the Will-maker’s spouse remarries and decides to sneakily take the inheritance for herself, the testamentary trust will prevent that. A Will with a testamentary trust can provide assets for a Will-maker’s children at certain ages. So, a Will-maker’s child can receive their inheritance during college, when they get incapacitated, or when they marry. 

However, it’s important to take note that a testamentary trust only takes effect after death. If someone is creating a Will and wants to set up a trust during their lifetime, they can also opt for a living trust.

What Should You Take Note of When Creating a Will?

You Can Update Your Will During Your Lifetime

Yes, you can keep updating your Will as you please. Many people probably forget to update their Wills and are confident in how they set up their Wills. However, certain circumstances change in one’s life and affect a Will’s provisions.

For example, a person can buy a new property, file for a divorce, or suddenly have news that they will have grandchildren. The sound of a new home, with a new wife, and grandchildren to play with may sound enticing. But amidst the new beginnings and blessings, has a Will-maker considered adding this to their current Will or more so, creating a new Will?

A Will-maker wouldn’t want their current estate going to their ex-wife, or their new home nowhere, or even their grandchildren receiving no inheritance or specific gifts at all.

Appoint a Responsible Executor

The executor is the main person who administers a deceased’s estate. These people will act in the best interests and pledge loyalty to the beneficiaries and the estate. They must administer and distribute the estate within reasonable time frames. Additionally, they should have a grasp on how tax implications work on a deceased’s estate. 

Sounds like a lot of duties, right? So, you shouldn’t choose just anyone who will handle your estate after your death. Naturally, you would choose someone you have a close relationship with in your family or circle. But do they have what it takes? Will they have biases or crack under the pressure? Are they ready to be personally liable for their actions as an executor?

Appoint a Legal Guardian for your Children and Dependents

Do you have people in your life who need special care and guidance when you pass away? Then you can appoint a legal guardian in your Will for your children or dependents under 18. Similarly, you should appoint a trusted and responsible person who is up for this job. Make sure they understand the needs of your children and dependents.

Know the Effects of Probate

Probate is a court order that validates a Will. Before an executor can administer the deceased’s estate, it needs to go through probate. The executor will need to apply for a grant of probate if:

• The Will-maker solely owned their assets (some assets are jointly owned, like properties or bank accounts)
• The total value of the assets exceeds a certain amount (make sure to check which jurisdiction applies to the estate value threshold)

You won’t need a grant of probate if all assets are jointly owned or the total value of the estate falls below a certain amount.

Dying Without a Will

Now this is what Will-makers with complicated and valuable assets fear. Dying intestate will cause a lot of problems for beneficiaries and will brew up a recipe for stress and disputes. If this happens, beneficiaries or family members of the deceased can apply for letters of administration.

When applying for Letters of Administration, you’ll need to file the following documents with the Supreme Court (in addition to those typically required for Probate)

1. Affidavit Regarding De Facto Relationship:
   • If the deceased was not in a de facto relationship, an affidavit stating this.
   • If the application is made by a de facto spouse (including same-sex partners), a detailed affidavit confirming their relationship is required.
2. Affidavit of Applicant for Administration: This document replaces the “affidavit of executor” used in probate applications.
3. Administration Bond: You may need to provide an administration bond if required by the court.

You and Your Witnesses’ Signatories

We cannot reiterate enough the importance of signatories when creating a Will. A Will needs to be properly signed by you and two witnesses for it to become valid. Even the succeeding pages and any important documents in your Will need the said signatories to ensure that you and your witnesses have read and understood the Will.

How Can We Help Creating a Will for You?

As of now, people already know the level of knowledge that lawyers have with Wills and estate planning. But who are the lawyers who are dedicated to protecting your assets for your beloved family members?

We at JB Solicitors are the lawyers who can create a Will for you. Your beneficiaries’ future can rest easy with our expertise and guidance. We can also act as your executor with an enduring power of attorney to secure your assets.

Contact us today or visit our office locations below:

Sydney CBD Office:

Suite 1, Level 20, 233 Castlereagh St, Sydney NSW 2000

Western Sydney Office:

Suite 3, Level 1/203, Canley Vale Rd. NSW 2166

Bondi Junction Office:

103/332-342 Oxford St., Bondi Junction NSW 2022

Melbourne Office:

The Exchange Tower, Level 1, 530 Little Collins St, Melbourne VIC 3000