Wills, Estates and Powers of Attorney

29/08/2022

10 most common questions people ask when doing their Will

A Will is a signed, legally binding document that describes how you want your assets to be handled after you die. What follows are the 10 most common questions that we get asked by Will makers.

CAN THE WILL BE CHALLENGED?

If there are any issues about the legitimacy of a Will, it might be challenged or contested.

A Will may also be challenged for the following reasons:

Someone you were liable to support believes that your gift to them is unfair portion or that didn’t make enough provision for them. A close relative, such as a spouse, child or stepchild, grandchild, or parent, could be involved.
That someone pressured you into signing your Will, and therefore it is invalid. This is difficult to prove, but it is best to have a Will that is drafted by a Lawyer and witnessed by them, to remove doubt.

Also, when choosing to do an Online Will, make sure that it is backed by a lawyer, who can review it and ensure that it is all in order. Remember that an Online Will Preparation platform is a way to work smarter and therefore offer a more cost-effective process, as we do, but do not use a DIY Will Kit from the post office that can’t be checked by a lawyer. Even the Best DIY Will Kit on offer should be checked by a lawyer.

2. DO I LEAVE MONEY TO MY KIDS?

You’ve worked hard and diligently in the hopes of providing anything for your children. While you may adore your son or daughter-in-law as if they were your own child, it’s normal to question whether there are any ways to ensure that the money you leave behind stays in your family.

While the subject may appear strange at first, it is one that many parents who leave massive wealth to their children ponder at some point. That’s because if you leave assets to your child entirely, their spouse usually has an equal legal claim to them.

There are, however, methods to leave money to your children rather than their spouses, so speak to us if you want to know your options.

3. DO I NEED A TESTAMENTARY TRUST?

Testamentary trusts are established by a Will to provide beneficiaries more flexibility over the transfer of assets. Testamentary trusts can offer tax benefits, making them a useful estate planning tool.

There are two types of testamentary trusts that are usually used:

Testamentary trusts with discretion.

Through a testamentary trust, the executor allows the beneficiary to take part or all of their inheritance in a manner that is right for their circumstances. The principal beneficiary may have the authority to nominate and dismiss the trustee, as well as to administer their inheritance within the trust.

Protective Trusts

Protective testamentary trusts are used to protect a beneficiary must receive their inheritance through the trust and has no power to nominate or dismiss trustees. If the beneficiary is unable to handle their inheritance owing to age, incapacity, or spendthrift habits, this option may be advantageous.

4. DO I NEED A POWER OF ATTORNEY?

Powers of attorney for financial and health care should be included in everyone’s estate planning documents, along with a Will. Powers of Attorney apply for decisions made on your behalf while you are still alive

A power of attorney can be used for a variety of reasons, and there are many different forms of powers of attorney. They are good to have in place right now because you never know when an emergency will strike and you’ll need a power of attorney. If you become incapacitated and don’t have a power of Attorney the Court will need to appoint someone who they deem appropriate, potentially a stranger, to make decisions regarding your finances, health care and lifestyle choices. Other sorts of powers of attorney may be required only if a certain circumstance develops, such as to someone to sell your house while you are out of the country.

5. HOW WILL MY FAMILY KNOW WHERE TO FIND MY WILL?

When someone dies, one of the most important documents they leave behind is their Will. It states who they want as executor to carry out their wishes and how their assets should be distributed. Extra instructions, such as burial choices or guardianship of minor children, can be included. With such important instructions issued, it is crucial that a person’s last Will and testament be located as quickly as possible and that appropriate legal advice be obtained.

So, where do you look for a deceased person’s last Will and testament? A copy of a Will is normally maintained with the person’s important documents, and it’s always a good idea to inform the executors of where they may obtain the Will when the time comes. The original Will is required to apply for probate and provide instructions to various financial institutions.

If a copy of the Will is discovered, the law firm or Will drafters who created it are usually listed on the cover page or in the addresses of the Will’s witnesses. The law firm that prepared the Will normally keep the original signed document or can trace where it was sent.

If you are unable to locate a copy, the best place to begin is by contacting the law firm that represented the deceased. This could be a law firm that has assisted them with real estate transactions, family law matters, or business advice. If you don’t know of any law firm or Will drafter who worked for the deceased, phone the bank, as some banks still preserve records for their customers. Some people may lodge their original Will with the Supreme Court in their State.

We offer a Digital Vault service where you can store all your important documents, including your Will, and when we receive confirmation of your passing we trigger the release of your documents to those of your choosing. This is the best way to protect your valuable documents and information.

6. HOW CAN I ENSURE THAT MY WILL IS VALID?

For a Will to be legitimate, it must include the following:

It must be in writing,
signed by you,
and signed in the presence of two witnesses.

To make a Will, you must have the mental capacity to do so and comprehend the consequences.

You must have made the decision of your own volition and without the influence of anyone else.

The Will should begin by stating that it revokes all previous Wills. If you have a previous Will, it should be destroyed.

Again, it is best to consult with a lawyer, who will ensure that your document is valid, even when going through the Online Will process.

7. HOW CAN I CHANGE OR CANCEL MY WILL?

There are several circumstances under which amending your Will is recommended:

Changes in your life,
such as marriage,
divorce,
or the birth of a child
or the sale or acquisition of certain assets,

(1) destroying it,

may affect how you want to dispose of your assets after you die.

While there are a variety of reasons for updating a Will, it is critical to understand how to represent your current goals in your Will. Failure to cancel or amend a Will in the correct manner can lead to confusion and costly litigation.

In most states, rescinding a Will is a simple process. In general, you can revoke a Will by

(2) creating a new one, or

(3) changing an existing one.

Giving up all of your property and assets before you die can sometimes have the effect of nullifying a Will.

8. WHAT HAPPENS TO MY STUFF IF I DON’T HAVE A WILL?

If you pass away without leaving a Will, you are said to have died “intestate.” When this happens, your property will be allocated according to the intestacy laws of the state where you live. Any bank accounts, securities, real estate, and other assets you own at the time of death are included. The intestacy laws of the state where the property is located will apply to real estate so this can complicate things.

If you were single, married, or had children, the laws of intestate succession differed significantly. Your property is usually divided among your “heirs” which could include your surviving spouse, parents, siblings, aunts and uncles, nieces and nephews. When no relatives can be discovered, the estate is usually given to the state.

Using an Online Will process is a really easy way to ensure that do get the Will done. Just don’t forget to sign it.

9. WHEN SHOULD I UPDATE MY WILL?

After you’ve written your Will and kept it safe, you might be wondering how often you should update it.

When you have a major life event, estate lawyers advocate amending your Will. Even if you don’t think anything has changed, it’s a good idea to reread your Will every four to five years. This ensures that your family is safeguarded and that your final wishes are carried out.

Following these key life events, you should update your Will:

You’ve just welcomed a new addition to your family. Whether you give birth or adopt a child, you’ll want to make sure your child is taken care of and has a legal guardian listed in your Will.
The status of your marriage or de facto relationship changes. Weddings, divorces, and the death of a spouse or partner are all good reasons to amend your Will’s beneficiaries. (You might also want to update your enduring financial power of attorney and medical power of attorney to ensure that someone can make choices for you if you become incapacitated.) It’s also worth mentioning that, unlike your biological children, any stepchildren you may have or may not have no legal claim to your property. You can name them as beneficiaries in your Will if you want to include them.
You have received a cash windfall. Sudden wealth increases can be a pleasant surprise. You can modify your beneficiaries, increase your gifts, or leave a charitable bequest as a legacy.
You’ve had some financial difficulties. Your wealth may fall in some circumstances, such as if you lose money in the stock market. As a result, you might change your beneficiaries or the assets you leave them.
The laws are subject to change. The laws governing taxes and estates can change at any time. Other estate planning options, such as living trusts or transfer, may become more appealing as a result.
You relocate to another state. The laws governing estates differ from one state to the next. This isn’t always the case, and if you examine your Will after each state change, you can avoid legal issues.
Your health begins to worsen.It’s a good idea to examine your Will while you’re still healthy if you’ve been diagnosed with a degenerative condition or terminal illness. You may want to make changes to your Will or give things away now so that they aren’t included in your estate later.
You become a grandfather or grandmother. If you wish to include grandchildren in your Will, make sure to update it whenever your family grows.
You have a change of heart about a beneficiary. People change their minds for a variety of reasons, not all of which are negative. Let’s imagine you planned to give a sizable portion of your fortune to a disabled niece, but she no longer needs financial assistance. Perhaps you’ve become involved with a charity and want to ensure that it continues to get funding after you’ve passed away,

10 WHAT IF I NO LONGER HAVE THE ASSETS I INTEND TO GIFT WHEN I DIE?

If you gift someone a certain item, and you do not have it when you die, then the gift fails. You must be sure to make it clear in your Will that in giving the gift, that that is not an instruction to your executor to obtain the item to give. If in doubt get in touch with us to discuss this.

If you have less assets when you pass away remember that your specific gifts like items or money are paid out first, and if you leave the balance of your estate to someone think that they will get a sizeable inheritance, but they may not because your cash gifts are too high. It may be better to leave percentages to your beneficiaries rather than a specific amount to allow for changes in your wealth over time.

Hazel Todd