What to think about before your first Wills appointment with our Solicitors

Have you made an appointment to see one of our solicitors about making a Will?

Making a Will is one of the most important tasks you can undertake to ensure that your legal affairs are in order.  A legally binding will ensure that your estate is distributed according to your wishes when you pass away.  It will also protect your loved ones, and the inheritance you choose to leave, from anyone who may think that they have the right to make a claim against your estate.

When making a Will, there are a number of things that you will be asked to consider.  Being prepared, before you come in to see a solicitor, will ensure you have the time to think about what you would like to do and to make the best possible plans.  Following is a checklist of things you should consider before your appointment:

1. Who will be your executor?

An executor is someone who manages your affairs after you pass away. The executor has an obligation to carry out the following responsibilities:

• Organise your funeral
• Apply for probate
• Pay any debts that are outstanding
• Administer the estate and assets according to what is outlined in the will

You can appoint more than one person to act as executor.

It is important that you appoint someone you trust, given they have a crucial role in administering the estate correctly.

2. Would you like to appoint a second or third executor, in the event that the first executor for any reason is unwilling or unable to act on your behalf?

Appointing a second or third executor is quite common. Normally most married couples with adult children appoint their spouse as executor and their children as their alternative executors. You can appoint anyone as an executor (it does not have to be a family member). However, it is important that you notify your potential executors to ensure that they are comfortable in taking up the responsibilities involved.

3. Who will you choose as your beneficiaries (including the amount of shares you wish to give away)?

You can leave your estate and assets to whoever you wish. You can give them a lump sum (called a legacy) or a share of your estate. However, if you are married or in a de-facto relationship then the law says that you must provide adequately for your spouse/de-facto partner and must also provide for your children. If you do not provide to these classes of people then they may pursue a claim against your estate. If you have not spoken or seen your child/children in years then it is still important to make proper provisions for that child. However, you do not have to provide for your children equally.

4. What will happen if one of my adult children dies before me leaving children?

If one of your children dies before you and they have children, then your deceased child's share goes to their children unless you clearly specify that you do not what that to happen.

5. Who will be your Testamentary Guardian in the event you die before your children under the age of 18 years old? And at what age do you wish your children should manage their money themselves once they get to a particular age?

In the event you die with minor children (under the age of 18 years old) then you should plan to appoint a testamentary guardian in order for that guardian to make life style decisions on behalf of your children. The testamentary guardian is the person who will make decisions about the welfare of the children. You should also ensure that your executor has the power to advance funds for the benefit of any minor beneficiaries.

6. What happens if my family all die at the same time in a tragic event?

Fortunately, the likelihood of this happening is extremely low. We can prepare a lapsing clause to give such part or parts as would otherwise lapse to the people whom you wish it to go to. Section 35 of the Conveyancing Act 1919 (NSW), outlines the presumption of survivorship, in an event where we aren’t able to establish who died first. The act states that "the deaths shall for all purposes affecting the title to any property be presumed to have taken place in order of seniority, and the younger be deemed to have survived the elder".

It is important to remember that every situation is different and when you are making your will, we try to ensure that the document we prepare on your behalf is legally binding and will allow for the distribution of your estate as per your wishes.  For professional legal advice regarding a will, please contact Maclarens Lawyers on 9682 3777.  One of our experienced solicitors will meet with you to discuss your options and provide advice regarding both your will and any other legal appointments you may want to make.