YOUR WILL -
THE BASICS
When
you prepare your Will, it is important that
certain information is added,
if you want to ensure that your wishes are followed.
Click to read why you should have your Will prepared.
You have to make
the decision about who is to be responsible for following your wishes.
Clearly, it should be someone you trust.
Then, you
have to decide how your assets are to be distributed. You may not be
able to distribute everything you own.
Below is a
glossary of the various legal terms used and a discussion of the types
of assets, that you may not be able to leave, to whomever you want,
when
preparing this important document.
So
What Are The Terms?
-
Testator/Testatrix
- The male/ female, whose Will it is.
This is what you are called, in this
document when you are preparing it. If
you have an
alias, or use, or, are known by another name, you should
ensure all names you are known as, are identified. An example
is:
"Patricia
Smith known as Patti Smith". You should
also complete your current address and occupation.
-
Executor/Executrix
-
The male/female, who you choose, and appoint,
to carry out your
wishes. You can appoint as many
people as you like. However, if
you appoint more than one executor,
and it
is likely that they may
have trouble agreeing
on things, you should
consider putting
in a disagreement clause,
just in case. Use their full name, and
address.
-
Trustee -
This
is another name for the executor/executrix, after the Grant of Probate.
- Beneficiary -The
person or persons, you
leave your
assets to. You can have as
many as you like, and, you can
leave what ever you want to, to whomever you want. Use
their full names, and state their
relationship to you.
- Codicil - This is a
supplementary document, which can make small changes, additions
or
modifications, such as the executors, to the original
Will, without affecting it's validity. It must be worded,
accordingly.
- Intestate
- This is where a person dies without leaving a Will. The Succession
Act from Section 101 to Section 137 is the legislation to determine who
gets what, when someone dies in this case. Click to learn how an estate is distributed when this occurs.
What Other Things
Need To
Be Considered?
When
you prepare this important document, you need to consider everything
you own, and how
you want it divide it, and who you want to leave it to. However, there
are some assets you have, that you cannot leave to anyone, because they
are not considered part of your estate.
The assets that you may not able to
leave or direct where they go, are as follows:
- Jointly
Owned Assets. Anything that you own jointly with
another
person, by operation of law, goes to the survivor, on the death of the
other one.
Therefore, if you want to leave such property, you need to
end, or change the joint ownership.
- Family
Trusts. If you have one, it was probably created for
taxation reasons or to protect an asset. Any asset held by a Family
Trust, is not yours to leave. Its distribution depends upon
who is appointed by the Trust Deed to have that power.
- Family
and Private Companies. The
assets belong to the company. Most likely, you might be a
shareholder, and you can leave the shares to whoever you want
to.
- Life
Insurance. If
the policy is written on your life, and you own it, it goes to your
estate. However, if the policy is expressed to be for the benefit of
someone else, it is owned by them, and you cannot dictate where it
goes. Further,
if the policy is provided by your superannuation fund, it
will most likely form part or your superannuation,
and
distributed accordingly.
- Superannuation.
If you want it to be part of your estate,
so you can direct what happens to it,
you will need to make a binding nomination with the Trustees of the
Fund. Otherwise, it will be paid to whomever, the Trustees of the
Superannuation Fund determine it is, to be paid. You will have no say
in
this decision. You should talk to your Superannuation Fund
Managers on this issue.
In preparing
your Will, there are many things to consider. If there is
any doubt, you should see your family lawyer, or solicitor.
The costs of
seeking this legal advice, would be a lot less than the costs to your
estate, if your executor has to have it rectified, because of some
mistake. The only losers, are going to be, your beneficiaries.
Public
Trustee?
Some say, go to the Public Trustee, they do it for free!
However,
there is no such thing, as, a free lunch!
If
the Public Trustee prepares it, they delegate the Public Trustee as Executor.
When you die, the Public Trustee charge a percentage cost for being your Executor,
which is based on the value of your estate.
Your
beneficiaries may discover, just how much they cost.
More often than
not, the Public Trustee charges, a whole lot more, to obtain Probate,
and administer the Estate, than any private legal firm, acting
for
a private Executor, nominated by you.
LASTLY
Place your Will in a safe place. Let your Executor, or loved ones, know where
to find it. If you have it prepared by a legal practice, they usually offer to hold
it, in safe custody for you, at no charge.
Left out of a Will.
Click here to read about how you may make a claim against an estate if you have been left out, or left little, in an estate.
For further advice, contact:
Phone 02-4332
1055 Fax 02-4333 5144
email: legal@drakegroup.com.au
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