Where there’s a will… wait, how do I get a Will?
The Real Thiel
Honesty time - I am getting a Will only now. This is not the kind of blog I can write alone, but the information is super important for many of the creatives and small business owners in my community. So, I have called in my big gun, Brooke Reardon, and asked her some questions.
Brooke is the founder of the law firm Wills & Estates, a national firm serving Australian adults in Wills & Estates. She's a total legend and she has been a huge help in getting my life (‘after life’) plan sorted.
Click here to access the first blog of this series.
Here is what Brooke taught me:
When should someone get a will? (is there a too soon/too late)
A person should have a Will if they are over the age of 18 and have any assets. When we talk about assets, we don’t just mean houses, cars etc. The bulk of people's assets can be held as Superannuation and the life insurance that is purchased in superannuation (check it, I bet you have it!) unless you fall into one of the government’s ‘Protecting Your Super’ categories here.
The other important document you need ,which goes hand-in-hand with the Will, is a Binding Death Nomination. This is a form that most Super companies require you to renew every 3 years in order for it to be valid i.e. they have to follow it. You can get a Binding Death Nomination from your Super company. Your super and the insurance attached to it are NOT considered to be part of your Will unless you complete a Binding Death Nomination telling the super company that you want it to be left to your Legal Personal Representative to be distributed in accordance with your Will. This means that whatever your Will says is how that money will be distributed. So as a minimum, get a Will once you're 18 and earning money. Review it, at a minimum, every three years when your Binding Death Nomination expires.
Hot tip: pop it in your diary now, and set to repeat!
Where can you get a will?
Post Office Kit
Argh this is what people who think it’s safe to do your own electrical work do. Please don’t use this.
This is exactly the same as a Post Office Kit, just ONLINE!
Generalist Law Firm
Some firms have lawyers who practice in a few different areas of law. I think of this the same as if I would go to my GP for heart surgery. ‘Nough said.
Traditional Specialist Law Firm
FAV. This is by far the best option for your Will. They should have the expertise to properly advise you on your estate plan.
Specialist Law Firm Online
This is my firm. I wanted to help people get their Wills done. Simple. I’ve seen too many times where people haven’t and it is very difficult for those left behind. I have created a virtual firm practising in Wills & Estates for those who want the convenience of online, location independent services with expert legal advice.
Why is it important to have a will?
Do you know what happens if you die without a Will? You should, because you should have read our other blog (1/3) by now…
If you die without a Will, you have died what is known as ‘intestate’. When you die your next of kin will need to pay for your funeral, close your bank accounts, file a final tax return, pay out/close any electrical, water, loan accounts, gather all of your assets including superannuation, life insurance and your physical possessions to be sold or distributed between beneficiaries. Yuck! We all know how teeth-pulling it can be dealing with a lot of big companies and government bodies at the best of times and this is no exception to that experience!
Most of those companies that your next of kin will have to notify will require a document from the court saying that they can act - this is called Probate. If you have a Will your next of kin would provide that to prove that they were appointed Executor and have authority to act. This makes those bodies A LOT easier to deal with because then they are assured that the Court has checked the validity of what you're saying and they’re dealing with a legitimate circumstance.
How do they figure out who gets what (if you have no will)?
If you died intestate and your assets are over a certain amount these bodies will usually want what is called a Letter of Intestacy from the Court. This is when the Court, following the rules set out in a table in legislation arbitrarily decides who gets what from your estate. This rarely is the scenario people want to leave for loved ones.
The below image is from South Australia Law Reform Institute: South Australian Rules of Intestacy.
Who can you leave your things and money to, and how do people usually outline it - like % of cash, or actual assets etc.?
You can leave your money and things to whomever you please. However, a family maintenance claim can be brought by someone who feels that they have not been adequately provided for by you in your Will. The aggrieved person must show that you had a responsibility to provide for his or her maintenance and support. The court will examine the nature of the relationship between the deceased and the person bringing the claim. It will also review the obligations of the deceased to the person.
This is a complex area of law. Where you think you would like to leave unequal portions of your estate to your spouse and children, it is best to seek advice as to how to minimise the risk of a successful family maintenance claim as your individual personal circumstances are highly relevant to the advice and outcome.
What records do you need to keep?
Keep a running list of your assets and liabilities if possible - not necessarily the dollar amounts, but the account numbers, what name they’re held in and where they are held. The dollar amounts can be sought at the date of your death.
Your accountant can help with this!
Also identity documents for yourself and contact details of anyone involved in your estate plan such as Executor and Beneficiaries.
How often should you update it?
Every three years at a minimum.
Life events that warrant an immediate review of your Will include births, deaths (of anyone in your Will or where you have received an inheritance that has added to your asset pool which should be considered), loss of capacity, bankruptcy and marriages/divorces (including de facto relationships).
Best next step? Get your asset register in check, then call your lawyer or reach out to Brooke (details below). Check out the third blog in this series too.
Reference: 'Where there’s a will… wait, how do I get a Will?', The Real Thiel, 17th of June 2020