Guest Article submitted by Bespoke Wills & Estates
Questions we often hear
When do I need to update my Will? What happens if I die without a Will? Why can’t I draft my own Will? The answers to these common questions are important.
When should you update your Will?
If you already have a Will- congratulations! However, you need to consider if any changes have occurred in your personal circumstances that will affect your Will.
- For example, have you:
recently married? If so, any Will you had prior to your marriage is now invalid because according to Western Australian legislation, the event of marriage revokes a Will.
- separated but not divorced? Your current Will may still provide for your former spouse to receive part or all of your estate, which is probably not what you now want.
- divorced since you made your last Will? If so, you now effectively have no Will, because according to Western Australian legislation, the event of divorce automatically revokes a Will.
- started living with someone? If so, you should be aware that people who qualify as a de-facto partner may well be entitled to bring a claim against your estate if you do not provide for them in your Will. You need to seek the advice of an experienced Wills and Estates Lawyer to discuss your situation.
- had a child, or more children (via birth or adoption)? Does your current Will consider all your children? Again, if you are unsure, see a lawyer for advice. You might also want to discuss the position with respect to any step- children.
- appointed someone as your executor and they have since died, become ill or incapacitated, or perhaps are no longer in your life. A Will without a suitable executor may still be valid, but another executor will need to be found and again, the whole process after your death is more complicated.
- started a business, a family trust, or gained various superannuation assets – how will these be dealt with after your death? A new estate plan might be needed to consider, for example, the continuity of a business or a self-managed superannuation fund.
- overseas assets? Any person who has assets overseas or a Will from another country should get legal advice about how both the Australian and overseas assets can be dealt with.
What happens if you die without a Will?
If you die without a Will (known as dying ‘intestate’) your estate will be dealt with according to the legal formula outlined in the Administration Act 1903 (WA). Determining who shall benefit from your estate, and who is entitled to make the application for ‘Letters of Administration’ (as opposed to an application for Grant of Probate) to deal with your estate can be complicated and time consuming.
Further, the legal formula can often mean your estate is distributed differently from what you would have wanted. For example, depending on how your assets are owned, if you die intestate leaving a spouse and children, your children are likely to inherit a significant part of your estate ie. your spouse will not receive all your estate. You can imagine the difficulties caused by this, particularly if you have young children. Your spouse’s access to funds might be severely curtailed because a large part of your estate may need to be held in trust (possibly for many years) for your children. Inevitably experienced lawyers will need to be engaged to assist in these circumstances.
If you are single and you don’t have children, using the formula outlined in the Administration Act, your estate will likely be distributed to your parents and/or your siblings, if they are still alive. You might be happy with that outcome, or you might prefer to give your estate to a friend or a charity instead of your siblings.
If you want to avoid the legal formula being applied your estate, you need a Will.
Can you prepare your own Will?
Like most things these, days, you can DIY your Will.
However, you need to consider whether this is really the area in which you should be practising your DIY skills. You run the risk that your lack of legal drafting skill causes your estate to be distributed in ways you never intended or that the process of obtaining Probate is much more costly than it needs to be.
There is an old joke among Lawyers, being “Lawyers love homemade Wills” because Lawyers make more money from your estate after your death when things go wrong!
You may be thinking “how hard can it be?” but as experienced lawyers in this area, we frequently see a wide variety of problems with homemade Wills.
Apart from expensive technical errors, we also see the bitter family disputes that arise as a result of homemade Wills where the Will-maker failed to discuss their intentions with a lawyer. An experienced practitioner can provide guidance as to the likely consequences of their choices and discuss various
options to avoid the problems that are likely to arise. This is particularly so, given the very high number of Wills that are now being challenged pursuant to the Family Provision Act 1972 (WA).
It is worth remembering that all Wills and Estates matters are dealt with in the State’s highest court (the Supreme Court) and consequently the costs associated with that are considerable.
Supreme Court Master Sanderson, in a judgment delivered in 2013 warned of the pitfalls of using DIY Wills, saying that “Homemade Wills are a curse. Engaging a properly qualified and experienced Lawyer is money well spent,” he said.
Emily Nixon and Shirley Tascone are very experienced Lawyers at Bespoke Wills and Estates Pty Ltd.
We both have many years of experience in Wills and Estate Planning and we take pride in our ability to make the process for clients as painless as possible.
We can be reached during business hours on 9445 2686 or
email@example.com and firstname.lastname@example.org