The usual excuses which one faces when asking whether a person has made a will are that doing so is expensive, time-consuming and unnecessary before middle age. These are all far from true – pursing them could be costly and have far-reaching consequences. Let’s look at each briefly:
Expense: The cost to prepare a valid will is likely to be a fraction of the value of an estate, while providing you with peace of mind knowing that your wishes as to asset distribution after your death are properly recorded.
Takes too long: Provided that you give proper and detailed instructions, a lawyer should be able to prepare at least a simple draft will within a few days (more complicated wills do need more time).
Unnecessary: It’s critical for anyone from their early 20s and certainly when starting formal work and accumulating assets to have a will. Not having a will (and not updating a will when important life events happen) has at least 3 drawbacks:
In Australia, each State and Territory has differing rules which determine who gets a share of one’s estate. This could have unforeseen consequences, such as one’s assets being left to a family member whom one may not have wanted to inherit anything or something less than is granted by law. In other words, you lose control of how your assets are distributed;
There are greater grounds for individuals who may have benefitted as heirs had a will been prepared and signed being dissatisfied with the set distribution imposed on the deceased’s estate by law. This could well cause friction between family members; and
The basic set cost to apply for Letters of Administration to allow an administrator to administer a deceased estate where no will exists is more than that to obtain a Grant of Probate which formalises appointment of an executor named in a valid will.
It’s not a good idea to try writing out your own will or to rely on off-the-shelf or online will kits – at the very least there are wording and signing formalities which need to be complied with which you may or may not necessarily get right. This could open the door to challenges to the will itself being valid. More than a decade ago, then and still current Western Australian Supreme Court Master Craig Sanderson described homemade wills as “a curse”. If an estate has substantial assets, it is even more important to have a properly thought-out and drafted will prepared.
In sum, a comprehensive will, updated as your circumstances change (such as buying assets; marriage; separation; divorce; starting or ending a de facto relationship; birth of a child or grandchild) should reflect your wishes. Did you know that in Western Australia, marriage and the ending of marriage cancels any existing will unless that will explicitly provides in very specific wording otherwise?
Kassem Seedat ((08) 9343 7865; email@example.com; www.seedatlawyers.com) can help prepare your will and advise on estate planning needs. This includes enduring powers of attorney, enduring powers of guardianship and advanced health directives (so-called “living wills”).
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