Importance of having a will and cost

[alexlee]

Wills should be written with the view that it will fulfill your wishes, in the most tax efficient way possible, whether you die tomorrow or in 50 years time. It should consider, then, what your situation looks like in 50 years. You may not have kids now, but in 50 years you might have children and grandchildren. Even if you don't have much assets now, you probably will in 50 years.

You have to assume that the will won't be updated before you die. Sure, you're supposed to update your will every time there's an event like marriage, children, etc, but few people do.

 

[Terry_w]

Order of death needs to be determined because

Say husband leaves every thing to wife, and then the RSPCA if she predeceases him.

Wife leaves everything to husbabd, and then to Donald trump if he predeceases her.

Q: Who is going to get the money if they both die together and it cannot be determined who died first? RSPCA or Trump?

A: It depends

There is a presumption that the older person dies first unless there is evidence to the contrary.

Many wills have a clause that X must survice me by y days in order to inherit. This is also in the succession act, but the will can dictate otherwise.

 

[Terry_w]

You have to assume that the will won't be updated before you die. Sure, you're supposed to update your will every time there's an event like marriage, children, etc, but few people do.

Good point.

And if you have lost capacity you cannot update your will.

 

[impala67]

Interested as well here...

Would love to hear the scenario where couples don't have any kids.

 

[jerrybee]

I've always wondered how does a will get executed? Say you leave it with a lawyer, he / she doesn't necessarily know that you died. If you leave it with a family member, what if that person is dead too (say you're in the same car)...or what if something malicious happens and they don't even tell anyone they have it?

What are the mechanics for a will to be executed? That's never been clear to me.

 

[Terry_w]

I've always wondered how does a will get executed? Say you leave it with a lawyer, he / she doesn't necessarily know that you died. If you leave it with a family member, what if that person is dead too (say you're in the same car)...or what if something malicious happens and they don't even tell anyone they have it?

What are the mechanics for a will to be executed? That's never been clear to me.

Executed means signed. It needs to be signed in front of 2 witnesses. There are provisions for unsigned wills to be admitted - one in QLD recently was a will made on iphone video moments before suicide.

But what you are asking about this how the process starts once you are dead. What usually happens is family and friends start looking for the will in your documents. They may start calling your lawyers - if they know who they may be. If one will is found an application for probate may be found and then an advertisement is needed to be published. There are often ads in the law society journal. Sometimes a later will is found and then probate has to be done with the newer will.

Also there would be cases where someone in the family has found a will and then destroyed it as they may benefit from the intestacy rules more. This would happen all the time I imagine.

So it is a good idea to keep your will in a safe place, let family know where it is, keep a copy somewhere - maybe with a few different family members. And make sure it is always up to date.

 

[wylie]

I've never understood why wills are not kept in one central "will bank". Of course DIY wills would mean it is up to the individual to get it lodged but solicitor prepared wills could easily be lodged in a central place, or even scanned electronically to avoid some of these "missing will" situations.

What happens if an estate is settled via a will and a later one is found?

 

[Rixter]

I've never understood why wills are not kept in one central "will bank".

There already is one in each state for that purpose, however its up to each individual as to where they decide to store it.

 

[alexlee]

There already is one in each state for that purpose, however its up to each individual as to where they decide to store it.

Are there rules that state whether you have to present a death certificate to view a will? I can imagine people would be reluctant to store a will in the public domain if anyone could go look at it.

The general idea would be to let your solicitor, your family and certainly your executor, have copies of the will.

 

[Terry_w]

There are will registrars but they cost money to lodge to.

If probate has been granted and a later will found then an application to revoke the first probate can be made. If the estate has been wound up it will be a big problem - possibly be too late. The executor is not liable if they had followed proceedure, waited the appropriate time, given notice of distribution etc.

There are a few cases where someone had been declared dead, their estate distributed, and then they popped up alive again. Not sure what happened in this case, but perhaps the persons who inherited their property were lable to give it back (constructive trust for the non dead dead person).

 

[Rixter]

The general idea would be to let your solicitor, your family and certainly your executor, have copies of the will.

That's the idea.

 

[Terry_w]

You generally don't want copies of you will floating around - especiallywith an interested party. Even if sealed, what if someone opened it?

Best practice would be to have the original in a safe place with a copy held by the lawyer. Your accountant is another good person to hold a copy. Lawyers can only hold originals if they have secure storage facility such as a safe, and the details must be recorded on a special register.

 

[jerrybee]

Best practice would be to have the original in a safe place with a copy held by the lawyer. Your accountant is another good person to hold a copy. Lawyers can only hold originals if they have secure storage facility such as a safe, and the details must be recorded on a special register.

This is what I mean before. How would your lawyer know you've died? And what if no one in your family knows you even had a lawyer?

 

[Terry_w]

This is what I mean before. How would your lawyer know you've died? And what if no one in your family knows you even had a lawyer?

Hopefully someone will know. Eventually someone will apply for probate or administration (if no will) and this is when advertisements need to be made. The advertisements notify the death and that is when other people and wills come out.

If no one knows your dead there can be problems. There is a recent case in Sydney where a woman died at home and no one knew for about 8 years or so. They had to determine the date of death by autopsy and other evidence. The date of death was very important because if it was before X died X would have inherited and it would then have gone to the estate of X. But if the woman had died after X then it would have went to Y. This one was just in the news a few days ago

 

[jerrybee]

Hopefully someone will know. Eventually someone will apply for probate or administration (if no will) and this is when advertisements need to be made. The advertisements notify the death and that is when other people and wills come out.

Seems so convoluted.

Why don't they simplify it. As the guy before said, why not have a centralised repository for all wills that is held by the government. Upon death, this place is checked as part of the standard procedure. If there is a will, good. If not, then it defaults to the standard rules. If they have a will and it's not registered here, tough.

 

[Terry_w]

Seems so convoluted.

Why don't they simplify it. As the guy before said, why not have a centralised repository for all wills that is held by the government. Upon death, this place is checked as part of the standard procedure. If there is a will, good. If not, then it defaults to the standard rules. If they have a will and it's not registered here, tough.

That would complicate things even more. What if someone didn't lodge. Or wanted to change their will frequently.

 

[Sean M]

Hi Ms Ali

Having a will is important! They range from <$50 for a simple Will kit all the way to >$3000 depending on how complex your will is and if you want to have a trust established etc.

Things to think about:

1. Do you have a complex family tree ? i.e. broken marriages, children from other marriage/ partners etc
2. Do you have money/ property?
3. Do you have a big family?

If any of those are yes then you should seek legal advice to get a proper will draw up. (please note the list above is not exhaustive)

The consequences of not doing it is not so much on you should you be the person who is dead, its the issue with the families and fighting with the lawyers/estate etc. The end result is there is less left over in the estate when its all done and dusted.

Hope that helps

Sean

 

[Paul@PFI]

My post is late in this discussion but I always love this comment :

"For a simple will what would could one expect it to cost?"

Answer : A simple will could cost someone a fortune if you need a more complex will but decide to cut corners and costs. Heaps of DIY wills are invalid in some respect....The post office cheap will kit may end up being expensive after all !

The correct position is that BOTH members of a couple should prepare wills at the same time. The wills should consider all possibilities including super. Note that super isnt an estate asset however so it wont be included in the will. Instead your legal adviser will make recommendations about how to safeguard super so that the intended beneficiaries are consistent with the will. Note by couple it doesnt matter if you are legally maried same sex etc...If you cohabitate then think of yourself as being married until a legal adviser says otherwise.

Q : Does your wife/family have the right to turn off your life support machine or put you into a respite facility or their choice of Doctor? This is a great question for the person drafting your will and makes a great discussion point.

 

[alexlee]

The wills should consider all possibilities including super. Note that super isnt an estate asset however so it wont be included in the will

My understanding is that you can designate your estate as the binding beneficiary in your super, which would make it part of your estate.

 

[Terry_w]

My understanding is that you can designate your estate as the binding beneficiary in your super, which would make it part of your estate.

Yes, but super and trust assets do not, generally form part of your estate.

With super the trustee can pay certain dependants, including the legal personal representative so it gets into you estate and can thereby be distributed by will. For tax reasons it is a good idea to segragate the super as different beneficiaries pay different rates of tax. In my testamentary discretionary trusts I have a super proceeds sub trust set up to keep it separate.

please note that in NSW in some limited cases both super and trust assets and joint tenant assets could be deemed to be party of your estate and used to satisfy family provision claims.