When a person dies they usually leave behind a Will that specifies what is to happen to their assets upon their death and who are executor; the person (or people) whose role it is to secure and distribute assets of the deceased and ensure the terms of the Will are carried out lawfully.
It may sound like a simple task; get a good precedent, make sure you spell everyone's name right, don't include that errant child that's not liked anymore, print and sign.
Will drafting 101, right?
Let's get a few things straight. When a specialist lawyer speaks to their clients, the following list is just a few of the things that need to be considered:
- age, health, marital status and all potential future conditions;
- previous marriages - lawfully terminated and documented;
- assets and how they are held;
- choice of executor/substituted executor - dispute resolution;
- any alias or other relevant names;
- superannuation/life insurance - beneficiaries;
- family businesses/companies/trusts;
- how to divide the estate;
- beneficiaries at risk of divorce/bankruptcy;
- special needs/care;
- tax needs (CGT/stamp duty concessions);
- guardian of infant children (testamentary guardian) - their financial needs;
- promises made;
- international assets/wills? - unintentional revocation;
- potential of inheritance claim;
- risk of incapacity or undue influence;
- loans and debts, how are they to be paid.
I could go on, but won't.
If you think that you require a simple Will because none of the above points are relevant to you, think again. Take this one test and let's see!!
Find your most recent superannuation statement or policy. There is likely an amount stated as invested as at 30 June or 31 December in a certain year - ignore that bit.
Head to the middle pages and find the amount payable upon your death and/or upon your total and permanent disablement (TPD).
My guess is more than half of you had no idea how much there would be.
Now, stay with me here, check the statement or policy to see if you have nominated any beneficiaries. Did you know that you can nominate your estate as a beneficiary and be in more control of how the balance of your fund, including death benefit, can be applied and distributed?
What other advice might you be missing out on by not speaking with a professional Will drafter.
How many know what a Testamentary Trust Will is or why that might be advantageous to you or your family after your death?
Will kits you can buy from the Post Office for $29.95 are cheap because you do not receive any advice, options or guidance. Importantly you also do not know if the form has been completed correctly or will actually work as expected, or at all!
Cheap Wills are everywhere.
You may even find some lawyers who prepare Wills quite cheaply, certainly not the $29.95 variety, but even at $190 the lawyer must be rushing through the interview process, obtaining the most general information and preparing a standard -"of the shelf" Will.
At a minimum, a lawyer should spend about an hour with you at the first interview, gaining valuable information about what you own, your family tree, any skeletons in the closet that we really must know about.
Then the drafting begins. Each Will is different, and for a reason; we are all different people who all have different needs.
A "draft Will" should be capable of amendment, being added to and subtracted from, explained in detail and executed correctly.
I even make sure you and all of your nominated executors have a copy of the Will to ensure that knowledge of the original Last Will is never forgotten.
And all of that takes time, experience, knowledge, care and attention to detail.
So next time you contemplate drafting your Will or reviewing your current one, just remember that the cheapest quote you find may not equate to the best product produced at the end.
My tips for getting a good Will drafted
- Choose a lawyer who specialises in drafting Wills, simple and complex;
- Speak to them on the phone before making an appointment;
- Don't ask them all the questions you've ever wanted to ask a lawyer but make sure you feel comfortable and confident with them. Don't be put off if the lawyer cannot provide you with a firm quote over the phone - that's usually impossible to do without knowing your personal circumstances.
- The appropriate time to quiz the lawyer on the likely costs of the exercise, are at the end of that first interview after the basic and relevant information has been obtained.
Now go get that Will!!