Wills and EstatesWhat Should I Include In My Will

October 30, 2018
https://www.alflawyers.com.au/wp-content/uploads/2020/07/iStock-137014992-300x199-1.jpg

There are a number of Things to Consider when Making a Will and this article will start to give you some knowledge of what you can include.

A will has nothing to do with your wealth. Some of us may not consider ourselves rich, but no matter what your personal perception of where you believe you stand on the socio-economic ladder, you always need a will.

In considering if you need a will, be cautious that you don’t undervalue your true wealth, or what you might be worth. A combination of growing property prices, at times generous markets and recent changes in superannuation investment laws have substantially increased the net wealth of many Australians.

Also consider that a will is much more than just a medium to transfer your money to your partner, children and grandchildren. Your will is a legal document that allows you tremendous flexibility and can include a vast array of things. Whilst difficult to cover everything that you could include in your will, the list below gives you a broad understanding of what can be included:

Assets

  1. Your home and investment properties
  2. Your Business
  3. Money
  4. Cash
  5. Cars
  6. Investments such as stocks and shares or investment trusts
  7. Paintings and valuable pieces of art
  8. Antiques
  9. Other Assets

Specific Belongings

  1. Furniture and Personal Belongings
  2. Musical instruments
  3. Collections
  4. Books
  5. Tools
  6. Photos and Videos

What about debts?
Yes, unfortunately debts are not cleared once the individual passes therefore, for those who survive you, any debts that you have while you are alive remain as debts.

Anyone who can prove you owed them money can make a claim from the assets you leave in your will. This will happen even if you don’t mention the debt in your will.

If you have debts, it’s a good idea to specify that they be paid out of your estate before your assets are distributed. Failure to do this, may result in a person who inherits an asset with a debt, for example a property with a bank loan, may end up with a lower amount of money than you intended.

Can I Include Charities, Not for Profit Organisations or Schools as Beneficiaries?

Your will can also nominate charities, not for profit organisations, school, museums and any other institution as entities that can receive either money or personal belongings. It is important to be very specific when leaving assets or personal belongings to charities or other institutions to ensure there is no confusion.

Superannuation and Life Insurances

Some assets, such as superannuation and life insurance, may not be distributed in a will. For example, a superannuation benefit may go directly to the person nominated to the superannuation fund. If you have a superannuation entitlement, make sure you get in touch with the fund to nominate the people that you want to benefit.

However, some more sophisticated wills can take account of superannuation death benefit distributions through an “equalisation clause”.

Be Cautions as To the Conditions You Use

Keep in mind that not all conditions in a will are legal. For example, conditions that include marriage, divorce, or the change of the recipient’s religion cannot be provisions in a legal will, consequently a court will not enforce them.

You can however include certain other types of conditions on gifts. Generally, these types of conditions encourage someone to do or not do something.

As an example, you may leave something to a grandchild when they finish University, alternatively you leave someone a property whilst they are living in it, however, when they move out, the property could be sold and the money divided amongst multiple people.

Naturally conditions within a will do complicate things, therefore it is important that you consider:

  1. how long the conditions apply for;
  2. who will be the person responsible for enforcing the conditions; and
  3. does this person received a fee for enforcing the conditions?

Can I Donate Organs for Transplant in My Will?

You can provide specific instructions within your will with respect to organs that you want to donate. You can also include your name on the Australian Organ Donor Register.

Keep in mind that it is not enough to merely state an intention to donate organs or body parts in a will, as usually a will is read too late after the testator’s death for the organs to be used. We recommend that you notify your next of kin of your wishes so that the appropriate action can be taken after death without undue delay.

Can I leave my body to science?
Your will can include a clause that you want your body to be left to a university for teaching purposes, but you will need to pre-arrange that with the university. It is not enough to just state it in your will as the university will not accept a person’s remains without prior arrangement.

Can I Appoint a Guardian for My Minor Children?
Your will can appoint a guardian to act in the event of the death of one or both parents, however, a guardian whose appointment takes effect on the death of only one parent will be required to make decisions together with the surviving parent regarding the long-term care and welfare of the child. Any dispute may have to be resolved by the court.

Can I Make Provisions for My Pets in My Will?
For many of us, pets are part of the family therefore it makes perfect sense that we would want to ensure that they are cared properly after we are gone. One option for doing this is to discuss the arrangements informally among family or friends although this approach may not be for everyone. Alternatively, a will is a useful and practical way to leave instructions for what you would like done with your much-loved pets.

A.L.F. Lawyers have prepared a separate article specific on this topic which is available on the Reading Room www.alflawyers.com.au/alf-reading-room/

 

If you enjoyed reading this article take a second to subscribe to our reading room and you will be advised when our Lawyers publish a new article. All of our articles are Free of charge and intended to cover day to day topics that effect regular people. You can unsubscribe at anytime if you change your mind.