Writing a Will
Some pointers to help you Write a Will, what to include and how to make it official.
Preparing your Will
A big first question: What is a Will? It is essentially a legal document setting out how your assets are to be distributed after you pass away. Writing a Will is an important life decision for the following reasons:
- Helping to ensure that your possessions will be distributed as per your intentions
- Appointing and outlining powers of an Executor and/or Trustee
- Appointing a guardian for minors
- Stipulating funeral wishes
- Accelerating the legal process of distributing your assets after you die
- Reducing stress-management for loved ones during this time
An important point to consider when preparing your Will is just how much of what you own is completely yours to bequeath to others. For those who are married, it is, for example, possible that 50 percent of your estate legally belongs to your spouse.
Other factors such as prenuptial agreements and trusts may also play a role in determining exactly what it is that you have the right to leave to others. It is very important that you get a full understanding of the implications of any such arrangements before getting ready to consider how you want your estate to be distributed.
Once you are fully aware of what it is that you will have to legally bequeath, the next step is to decide which people, or institutions, will be those that you choose as your beneficiaries.
This is entirely up to you. The division of your assets could be quite simply determined by awarding each person a specific percentage of the value of your estate. You could state for example, “To my daughter, June Smith, I bequeath 25% of my estate.” You could then apply this same method to the rest of the intended beneficiaries. Always ensure that that the total amount bequeathed across the beneficiaries totals 100 percent.
You may also decide to be more specific in your wishes. This method could see you bequeath specific items to your beneficiaries rather than a percentage of your total assets, or perhaps specific items to specific beneficiaries, with the remainder to be divided by percentage values amongst those and/or other beneficiaries.
Writing your Will and making a declaration
When it comes to writing your Will, you have a number of options. Most people choose to write a Will with the assistance of a lawyer. Others use online services. And a few simply decide to write their own.
There are pros and cons to each of the options, but using a lawyer, whilst the more costly option, will help ensure that the Will you leave is legally binding. In fact, it is highly recommended that you consult a lawyer when preparing your Will; you may also consider consulting a tax professional. Lawyers and tax professionals can often help you with a range of relevant matters, including the tax considerations involved in estate planning.
Whichever method you decide to follow when writing your Will, the general structure of the final document should remain similar.
In the Will, you must formally identify yourself, and you should include your date of birth. This ensures that there is no confusion about exactly who you are when it comes to the reading of your Will.
The first line of a Will should include a simple declaration such as: “I declare that this is my last will and testament.” It is also helpful to declare that you are writing your Will in a state of sound mind.
To help ensure your Will is valid, ideally –
- It needs to be in writing;
- You should be over 18 years of age; and
- You should have what is known as ‘testamentary capacity’ which means that you know the extent of your assets, you know the legal effect of a Will, you are aware of who would ordinarily be expected to benefit from your estate, and you do not have an impairment which prevents you from making rational decisions as to who shall benefit from your Will.
Finalising your Will
However you choose to write your Will, once it is complete, you should sign your Will in the presence of two other adult witnesses. These witnesses prove the veracity of your Will and can also attest to your mental wellbeing at the time of signing. The witnesses should not be beneficiaries under your Will.
Now that most of the hard work is out of the way, you should make arrangements for the secure storing of your Will. This is very important as generally speaking your Will cannot be used after your death if it is destroyed or cannot be found.
Sensible storing places for your Will include a safe at your home, a safety deposit box at a bank, or leaving it entrusted to your legal adviser or to a Wills and trustee service.
A copy of your Will should also be given to the person you designated as the executor of your Will.
Changing your Will
If you decide at any point to change your Will, it is important that you do not simply make edits. The fact that your original Will was signed in front of witnesses means that any changes also need to be verified in front of witnesses.
For minor changes, you can use a codicil. This is a document that refers to your original Will and clearly states that you are making alterations to the original. The codicil will be kept alongside the original Will.
If you feel the need to make significant changes, it is advisable to create a whole new Will.
Thinking of taking out Life Insurance?
Do I need a Will?
In theory, it is not essential that you have a Will. If you die without leaving a Will, it means that you have died “intestate”. Typically, in this situation, legislation and intestacy laws applicable in your state or territory provide a formula for distributing your estate. This often means that a person’s estate is distributed to their spouse and children.
What happens if I die without leaving a Will?
If you die without having left a Will in place, an executor (often appointed by a court through the process of “letters of administration” when someone dies without a Will) will have to work through your estate and determine how it is distributed to your closest living relatives. In the event that no living relatives can be found, additional complications will result and the whole estate could even pass to the government.
What do I need besides a Will?
As mentioned above, having Life Insurance cover in place is a definite plus when it comes to looking out for those you leave behind. Where term Life insurance cover is in place and a beneficiary has been properly nominated, then typically the life sum insured will pass to the beneficiary quite separately from the distribution of assets provided for in a Will.
Do Life Insurance policies have to go through probate?
No, the proceeds from Life insurance policies do not pass through probate as long as named beneficiaries are available to take the payout.