Most people are aware of the importance of having a comprehensive, legally binding Will that sets out precisely how your assets are to be distributed upon your death and who is to be in charge of administering your estate. But how often should a Will be updated and are there any other documents that need to be considered as part of a comprehensive estate plan.
Why do I need a Will ?
The simple answer to this question is that if you die without a proper Will in place, your estate will be distributed in accordance with the intestacy provisions that apply in your state. These rules dictate who can inherit, what conditions need to be satisfied in order for them to inherit, and in what proportion they can inherit. This potentially means that people may inherit from your estate, who you may not wish to benefit or who you may not wish to benefit in the proportion they may be entitled.
If you choose not to make a Will, it would also mean that you would need to keep abreast of any changes to legislation that may alter the rules.
Even if you are satisfied with the entitlements the rules of intestacy dictate, the fact that there is no Will would still mean a lengthy wait for any beneficiaries to actually receive their inheritance as first it must be determined, to the court’s satisfaction, that there is in fact no Will. This means thorough searches need to be done of all your papers, the records of the court and the NSW Trustee and Guardian, any banks who may be holding a Will and any solicitors you may have used during your lifetime. These searches represent the bare minimum of the searches that need to be carried out in order to satisfy the court. Further searches and possibly affidavits are likely.
It also needs to be determined who is entitled to administer your estate. This is typically an involved process where your administrator would first need to establish their identity and their entitlement to act as administrator. Any other prospective applicants then need to be identified and ruled out as candidates to act as administrator or they would need to consent. The process also typically requires the ordering of certificates of proof from the registry of Births, Deaths and Marriages.
The net result of the whole process is therefore delay to any distribution and will likely lead to higher fees which will need to be paid, typically from your estate.
If you operate a business, whether as a sole trader, partnership or company, properly prepared estate planning documents can make all the difference in determining whether your business is able to continue to trade or whether your business becomes burdened by the administration of your estate.
Drafting an effective Will is a simple way to save excessive fees and more importantly, protect your loved ones from unnecessary stress.
Does my Will need to be prepared by a lawyer ?
Strictly speaking, no, however there are a number of formal requirements for a Will to be valid including with regard to capacity, age, signing and witnessing, and these hurdles can be best navigated by engaging a professional to act on your behalf.
Aside from the formal requirements, a professional preparing a Will can ensure that the requirements in relation to revocation and powers of Executors are properly documented and they can ensure that your estate is fully and properly dealt with within the Will and that there is no confusion as to your Executor’s powers following your death, minimising the possibility that a partial intestacy may arise where a specific asset is not properly disposed of within the Will.
A professional will also be aware of any emerging concerns within the law and ensure that your Will is best drafted to minimise any risk.
At a bare minimum, a professional can keep your Will in safekeeping, together with any other documents that may be relevant to your estate planning, including any documents you may wish to prepare together with your Will, such as any statutory declarations or letters, together with relevant file notes, which can all be evidence that may make all the difference if your Will is ever challenged.
How often do I need to update my Will ?
A Will should be at the very least reviewed every two or three years. If you haven’t engaged a professional, you will need to attend to this, as well as a review of the current state of the relevant laws yourself, you will also need to personally attend to updating your records to reflect the fact that your Will has been reviewed and that your wishes have or have not changed as a result.
If there is any gap in these records, this may be evidence that can be used in favour of any claim, that your wishes may have undergone a material change between the date that the Will was prepared and the date of your passing.
Certain life events can also invalidate your Will in whole or in part and if any of these occur, your estate planning documents will need to be reviewed or updated earlier.
These can include changes in :
- Your personal circumstances, including marriage, entering into a personal relationship, divorce, significant changes to your assets, change of name etc or
- Changes in the personal circumstances of your appointed Executor, Attorney, Guardian or Beneficiary.
Changes in your intentions are also an obvious trigger to update your estate planning documents.
Do I need other estate planning documents ?
As well as a Will, you should consider whether you need any other Estate planning documents, as your Will only operates after you pass away and you may need to empower someone to act on your behalf prior to your death.
The types of documents you may consider preparing include:
- Power of Attorney;
- Enduring Guardian; and
- Advanced Care Directive.
These documents help to encapsulate your wishes and can continue to operate after you have lost capacity and the ability to express yourself.
Once again, the importance of such documents lies in the ability for you to dictate exactly who you would wish to empower to make decisions on your behalf. In the absence of such documents it may be that the court or tribunal will make a decision as to who is to manage your affairs, and this may not be the person you would wish to be so empowered. The timing of such an appointment may also not be ideal.
Our experienced Wills & Estate team can help prepare a comprehensive estate plan that ensures you retain control of your assets and decide who will make decisions in the event of physical or mental disability, injury, illness or death.
We invite you to make use of our easy to use online tool which will gather the relevant background information and provide details to a lawyer in our estates team who will contact you to discuss your unique situation and provide you with personalised advice.
