A guide on everything you need to plan your will
- November 1, 2022
- Posted by: admin
- Category: Wills and Estates
A guide on everything you need to plan your will
Regardless of how simple or complicated your financial or family situation is, there are some essential considerations for every person planning a Will. We run you through the most common considerations so that you can think about what information to bring for your first meeting.
What should you consider before the first meeting about my Will?
While you don’t have to have everything worked out before your first meeting, the two basic considerations when planning a Will are:
- Who are your executor/s who will organise your estate once you are gone; and
- Who are your beneficiaries, the people who inherit your estate.
For more information about what an executor is and what they do, see our article on Common Questions about Estate Planning.
Aside from the basic considerations above, below is a list of common areas which you will need to think about to be prepared to have an initial discussion about your Will.
A list of Assets and liabilities
Writing out a list of your assets will assist you to work through whether you need to make specific bequests or whether you can just leave your whole estate to one or many people in equal shares. All debts have to be paid out before your beneficiaries can receive anything and so a list of liabilities is critical to the process.
Real Property (Land)
If you have your Certificate of Title then you can bring this (or a copy of this) along to the first meeting. It is important to confirm where the original title deed is held as this will be needed by your executor in order to deal with the property.
If a property is owned as joint tenants then it automatically transfers to the surviving owners on the death of one owner. If it is owned as tenants in common then it may be available for transfer to beneficiaries. There are ways to manage this and we have provided more information in our Definitive Guide to Tenants in Common vs Joint Tenants .
Businesses & Companies
The main concern with businesses is who will keep them running if something happens to you. Even if a business is to be sold after your death it’s important to keep it profitable so that the value is maintained until it can be sold. How you plan for your business after you pass away depends on whether you are a sole trader or run a company and on what kind of business it is. Contact us to discuss your specific circumstances.
Gifts to Kids or Guardians for Minor Children
For children under 18 years old, you can nominate a guardian to care for them should something happen to you and their other parent. While this is not immediately binding because a Court still needs to make orders confirming custody, a Court will take into consideration any nomination you have made in your Will and consider whether it is in your child’s best interests.
A common question is what happens when you want to leave gifts to children who aren’t yet 18 years old. We manage this by allowing children to inherit at a particular age, most commonly, when they turn 18 years old. If any beneficiaries are children when you pass away, a properly drafted Will is going to allow your executor to manage their inheritance until they turn 18. It may also allow them to help them while they are underage by allowing for payments towards their education, somewhere to live or for travel to broaden their minds.
Burial, cremation and Funeral wishes
It is very common for people to include a clause telling their executor whether they want to be buried or cremated and also letting them know what kind of funeral service (if any) they want. If you are interested in this we can help you put this together.
Claims against the estate
You should consider whether anyone may have a claim against your estate or challenge your Will if they are left out of your will or given a smaller gift than others. You can find out more information about claims against estates here but for a conversation about your circumstances call us for an initial discussion.
What should you bring to the first meeting about my Will?
There is some standard information that we ask of all of our clients before we get started drafting their will. This ensures that we have a full picture of their needs and how their estate might flow to their beneficiaries and allows us to identify any potential problems that we can solve at the time we draft their Will.
The following information should be provided either prior to or at your first consultation:
- A list of your current assets and liabilities,
- Names and contact details for your executors,
- Names, relationship and contact details for your beneficiaries,
- A summary of how you wish your assets to be divided between your beneficiaries;
- Details of your superannuation;
- Any trust deeds for family trusts or Self-Managed Superannuation Funds (SMSF);
- Any company constitutions.
Do couples need to do this together?
It’s recommended that couples at least talk about what they intend to do under their will even if they don’t draft them together. As noted above, whether you can gift property that is jointly owned will depend on the ownership structure (see joint tenants or tenants in common) and if you have a partner, it is likely your choices in your Will are going to impact them in one way or another.
Power of Attorney and Enduring Guardianships
A Will only comes into effect at the time that you die but estate planning is not just about what happens in that situation. Estate Planning refers to other documents that would assist your loved ones to care for you if you lost the ability to make financial or health decisions. It’s about planning for the unexpected. You might want to consider who would run the business if you became sick or had an accident and couldn’t manage it. A Power of Attorney nominating a representative to handle your affairs if you lose capacity to do so is a relatively cheap way to ensure that someone can legally run your affairs if the unexpected happens.
Additional documents you may want to consider when drafting a Will are Powers of Attorney and/or an Appointment of Enduring Guardian. For more on these documents see our article here.
Should you have any questions about anything in this article please Contact Us for an initial consultation about your situation with one of our lawyers.