It is relatively easy to find a free Will template on the internet and fairly cheap to buy a Will “kit” from a newsagent or online. There are also websites that have “data collectors” that take your information and create a Will for you seemingly without any legal expertise required. So, is it really a good idea to write your own Will?
Why you need a valid Will
The sole purpose of writing a Will is that you can direct where your assets go when you pass away.
If you have a valid Will your executor distributes your estate in accordance with what you have written in your Will. Probate is not usually required unless substantial assets are held in your own name.
There are many common situations however where a valid Will is required to properly distribute your estate and look after your family and loved ones.
If you have a Will that is deemed not valid by the court then your estate will most likely be exposed to delay in distributing your estate, increased legal and court costs and perhaps resulting in financial hardship and emotional anguish for your family.
Most people think that their situation is simple and that a DIY Will is enough but consider the following situations and whether they might apply to you or someone you know.
Your home-made Will is lost or cannot be found
When a lawyer prepares a Will for you they usually hold the Will after signing in their safe custody and provide you with copies.
If you subsequently lose the original Will your family can ask the court to look at the copy of the Will and allow the wishes in that Will to stand.
If there are no copies the family is put to the expensive task of applying to the court for a grant of administration which is a more lengthy and costly method of dealing with an estate than the usual grant of probate.
Your hand-written Will is not signed correctly
There are very strict requirements for the signing and witnessing of Wills. If your Will is not signed correctly or is not witnessed properly, it might be invalid.
If your Will does not deal with all of the assets and liabilities that you leave when you die your Will may be ineffective in dealing with those assets.
Once your Will is made even writing on it later or making any changes might invalidate that Will and might render it ineffective, either partly or fully, in dealing with your assets.
You own a business via a company
It is likely that the business will continue to run after you die. The business might have ongoing expenses, such as rent and staff costs, that still have to be paid and this might cause your family hardship until the business can be sold or liquidated if there is no one validly appointed to run the business. You will need a validly appointed executor to run the business until it is either sold or dissolved. You can achieve this with a valid Will.
Consider that.
If you leave your superannuation in your DIY Will
Superannuation might form part of your estate and sometimes is dealt with in accordance with the terms of your Will, but in most cases superannuation will be paid directly to a beneficiary nominated in your superannuation policy or as determined by the superannuation trustee, without any reference to the terms of your Will.
Whilst you can provide in your Will that your estate be given to whomever you would like, there is only a small eligible group of beneficiaries who can directly receive superannuation benefits on your death.
Superannuation funds have particular rules for releasing funds to an estate and an invalid Will makes this process more difficult to navigate.
Tthe release of funds is not automatic to your family and your loved ones may suffer hardship if the release of funds is delayed.
Lawyers are trained to write valid Wills
Your lawyer will always do these two things when drafting your Will, they:
- take into account the strict law requirements for a Will to be considered valid by the state probate court; and
- also consider your particular situation and the specific individualised elements you need included in your Will.
Your lawyer can also help plan other aspects of your estate such as whether you need to appoint a guardian for your children, a trustee to run your business or whether an elderly relative needs to remain in your home after you are gone and a myriad of life circumstances that are particular to you.
If you or someone you know wants more information or needs help or advice in preparing a valid Will please contact us on 07 3133 3938 or email [email protected].