It is relatively easy to find a free Will template on the internet and fairly cheap to buy a Will “kit” from a newsagent or online. There are also websites that have “data collectors” that take your information and create a Will for you seemingly without any legal expertise required.
So, is it really a good idea to write your own Will?
Why you need a valid Will
The sole purpose of writing a Will is so you can direct where your assets go when you pass away.
If you have a valid Will your executor applies to the Court for a Grant of Probate and can then distribute your estate in accordance with what you have written in your Will. Probate is a document issued by the Court. It is basically proof that the will is your last will and that it is a valid will. The purpose of probate is that it confirms the executor’s authority and it can be relied upon by banks or institutions holding your assets when they are asked to consider requests to release those assets. It also provides executors with some protection when distributing the estate.
If you hold joint property with your spouse Probate is not usually required unless substantial assets are held in your own name. Even if Probate is not required there are many situations where a valid Will is still required to properly distribute your estate.
Most people think that their situation is simple and that a DIY Will is enough but consider the following situations and whether they may apply to you or someone you know.
In addition to preparing a valid Will, solicitors provide advice regarding:
- whether/how you can distribute jointly held property;
- whether/how you can distribute superannuation;
- tax effective vehicles to distribute assets;
- whether testamentary trusts are required to protect assets from creditors, beneficiaries, partners, etc;
- whether special disability trusts are required if beneficiaries are in receipt of pensions;
- whether/how you can pass control of family businesses, companies and trusts;
- whether the proposed distribution is open to challenge by other beneficiaries on the basis that they have not been adequately provided for; and
- whether you can protect your estate from challenge by other beneficiaries.
Solicitors will also ensure that your Will is properly signed, unambiguous and properly distributes your whole estate.
Your hand-written Will is not signed correctly
There are very strict requirements for the signing and witnessing of Wills. If your Will is not signed correctly or is not witnessed properly it may be invalid.
Once your Will is made even writing on it later or making any changes will invalidate that Will and may render it ineffective, either partly or fully, in dealing with your assets.
If you have a Will that is deemed invalid by the Court that may cause delays in the distribution of your estate, increased legal and court costs and potential financial hardship and emotional anguish for your family.
You estate may also be distributed in accordance with intestacy principles or an earlier Will (which was signed correctly) but no longer reflects your wishes.
You own a business
It is likely that the business will continue to run after you die. You will need a validly appointed executor to run the business until it is either sold or dissolved. You can achieve this in a valid Will.
Consider that the business may have ongoing expenses such as rent and staff costs that still have to be paid and may cause the family hardship until the business can be liquidated if there is no one validly appointed to run the business.
If your Will does not deal with all of the assets and liabilities that you leave when you die your Will may be ineffective in dealing with those assets.
Your home-made Will is lost or cannot be found
When a lawyer prepares a Will for you they usually hold the Will after signing in safe custody on your behalf and provide you with copies for your records.
Even if you take the original Will the lawyer will keep properly certified copies of the original Will. If you subsequently lose the original Will your family can ask the court to look at the copy of the Will and allow the wishes in that Will to stand.
If there are no copies the family is put to the expensive task of applying for a Grant of Letters of Administration- No Will which is a more lengthy and costly method of dealing with an estate than the usual Grant of Probate. If no Will is found then your estate will be distributed in accordance with the intestacy principles in the legislation which may not reflect your wishes.
If you leave your superannuation in your DIY Will
Superannuation may form part of your estate and be dealt with in accordance with the terms of your Will, but in most cases superannuation will be paid directly to a beneficiary nominated in your superannuation policy without any reference to the terms of your Will.
Whilst you can provide in your Will that your estate be given to whoever you would like there is only a small eligible group of beneficiaries who can directly receive superannuation benefits on your death.
Superannuation funds have particular rules for releasing funds to an estate and an invalid Will makes this process more difficult to navigate.
Again the release of funds is not automatic to your family and your loved ones may suffer hardship if the release of funds is delayed.
Lawyers are trained to write valid Wills
Your lawyer will always do these two things when drafting your Will, they:
- take into account the strict law requirements for a Will to be considered valid by the Court; and
- also consider your particular situation and the specific individualised elements you need included in your Will.
Your lawyer can also help plan other aspects of your estate such as whether you need to appoint a guardian for your children, a trustee to run your business or whether an elderly relative needs to remain in your home after you are gone and a myriad of life circumstances that are particular to you.
If you or someone you know wants more information or needs help or advice in preparing a valid Will please contact us on 02 6201 7243 or email [email protected]