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Wills

Do you need a will?

Everybody who has legal capacity to make a will should do so to ensure that your assets go to the people that you care about when you die. 

If you die without a will, legislation will provide for the distribution of your estate according to a set formula. This formula will apply regardless of the quality of your relationship with this person, regardless of the recipient's situation and status, and (unless contested) regardless of whether there are more deserving people who would rather have nominated to share in your estate. 

How do I make sure my will is valid?

The laws governing the legal requirements for preparing a valid legal will vary from state to state. All States however require you to:
  • Have testamentary capacity. This means you must be over 18 years old and understand what you are doing
  • Commit your wishes to writing
  • Get the document signed in the presence of two witnesses to be valid. 
What should you do you assets in you will?

Careful consideration needs to be given to the assets involved and to circumstance of the intended beneficiary, prior to making a will. 

Quite often legal advice will assist you in making decisions about your assets. 

Who should you choose as your executor?

An executor does not have to have professional qualifications. You should however be careful to choose a suitable executor or executors (more than one executor can be appointed).

After you die, the executor will need to provide your solicitor with information about your estate including bank account detail, share registry details, property details, and beneficiary details. 

Choosing a person you think will be capable of handling this responsibility is important. They should have a basic understand of your finances (or at least where you keep this information), they should also be someone with sufficient time to carry out the duties required of an executor, finally they should be someone you trust to handle the importance of this role. 

If you are unsure about who to choose, we are happy to discuss this with you to ensure the most appropriate person or persons are appointed. 

Why should you regularly review and update you will?

Serveral circumstances can affect wills, including:
  • Death of the executor of beneficiary under the will
  • Change in relationships including marriage and divorce
  • Birth or death of children or other beneficiaries
  • Acquisition or sale of specific assets bequeathed in a will
It is therefore important wills are regularly reviewed and also reviewed on the happening of relevant event. 

Keep you will safe

A will is an important document and should be kept in a safe place. We will hold your will in our strongroom for safekeeping on your behalf at no cost to you. 

You should tell your executor where the original will is kept so it can be easily located. It is also advisable to give the executor a copy of the will in a sealed envelope. 

Why have a lawyer prepare your will?

There are many issues that can be relevant in making your will. Only a lawyer with experience in this area can give you the best possible advice. If you buy a "Will Kit" you are relying entirely upon your own skill and knowledge. 

Unfortunately, if you make a mistake, it is unlikely that the mistake will be discovered until after you have died and this tends to cause a considerable amount of distress to the people that you wish to benefit from you will. 

A lawyer can:
  • Ensure compliance with legal requirements so you will is properly drawn up, correctly signed and witnessed
  • Ensure beneficiaries are provided for, for example through the creation of a trust
  • Ensure your wished are clearly expressed in the will and the will suits your situation and circumstances
  • Advise on whether a current or old will should be changed to reflect new circumstances
  • Advise on what circumstances your will could be contested and how you can prevent or reduce the chances of this occurring
  • Advise on whether you can make a claim from an estate and the likelihood of success
  • Pursue a claim on your behalf
  • Advise on the role of an administrator
  • Represent your interests in relation to any court matter
  • Advise executors on their obligations under a will and pursuant to the law
  • Advise on what happens where there is no executor
  • Provide advice where there appears to be an ambiguity in a will
The costs of making a will is probably a lot less than you think. We are happy to discuss this cost with you, simply call us on (03) 5440 2900 or email on info@osjlaw.com.au to ask for a quote. 
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