A will is a legal document that specifies how a person’s assets will be distributed after their death. It usually sets out things such as:
- Who will manage and oversee the distribution of your estate;
- Who will inherit your estate; and
- Who will be the guardian of your children.
Dying without a will is called dying ‘intestate’. When you die intestate, your estate will be distributed in accordance with the laws of the state you live in. In New South Wales, the Succession Act 2006 (NSW) determines what will happen to your estate upon death by way of a prescribed formula.
By not having a will, you lose control over what will happen to your estate. This exposes you to numerous risks which may include:
- Certain family members may not inherit anything from your estate;
- Your estate may end up being managed by someone who you do not want involved in your affairs;
- Your children may end up with somebody you would not have chosen; and
- Your estate may run in to complex and costly tax issues.
Failure to write a will can result in spouses, children, or other family members being left with no inheritance, which can result in people making claims against your estate, a process that can have considerable financial and emotional consequences on your family.
If you own a business or are a partner in a business, a failure to have a will and estate plan can cause your business to fall apart if you haven’t properly considered who will inherit your shares in the business, who will have control of the running of the business, and whether the business can continue to run at all.
What Is Required To Create A Will ?
A will can be considered binding if it meets the following criteria:
- It must be in writing;
- The person making the will must sign the will or direct someone else to sign it in their presence; and
- The signature must be made in the presence of two witnesses who must also sign the will.
While these are the basic requirements, there are also many complexities to consider. This can be things such as what to do with international assets, what assets can actually be gifted in a will, what the tax implications of those gifts may be, and whether to establish trusts.
At Thornton + King we have a team of specialist estate planning lawyers who can assist you in preparing a detailed and personalised will and estate plan. To speak with one of our experts, give us a call or submit an enquiry now.