Information About Wills
A Will sets out who is to receive the benefit of your estate and under what circumstances, after you have passed away.
In addition to setting out who is to receive the benefit of your estate, a Will also sets out who is in charge of ensuring these wishes are carried out – known as your executor.
You can appoint up to four (4) executors in your Will. Alternatively, you can nominate an organisation or institution, such as a legal or accounting firm, to act as your executor. Appointing a professional to act as your executor can have significant benefits:
- Where there is the possibility of a family dispute over the division of your estate, appointing a professional to be your executor allows your estate to be administered impartially.
- Large and complex estates can often be very difficult to Administer. By appointing a professional to be your executor, they often have the requisite experience and expertise to deal with these matters and avoid common pitfalls.
- If you appoint a family member or friend, who subsequently passes away, you may be left in the situation whereby you have no one appointed to administer your estate. By appointing a professional firm or company to act on your behalf, there will always be someone available to step into the role of executor.
If you would like to discuss appointing DSA Law to be your executor, please contact our office for a further discussion.
What can i give away under my will?
All assets owned in your sole name will form part of your estate to be distributed in accordance with your Will.
However, when considering what your estate comprises, it is important to consider that some assets do not automatically form part of your estate, including:
- Assets owned jointly with other persons.
- Assets held in a trust, such as a family trust.
- Superannuation and life insurance.
These types of assets are treated differently when it comes to their distribution following your passing. When planning for the succession of such assets, you should consult with your legal representative and/or accountant.
Testamentary trust wills
A Testamentary Trust Will allows your beneficiaries to direct some or all of their inheritance into a special trust set up in your Will, which provides a more tax-effective way of holding and investing inherited assets.
These types of Wills can also provide increased protection for those beneficiaries who are, or may at a later stage be, going through a relationship breakdown or insolvency.
Testamentary Trusts are not able to be created at a later stage, if they are not incorporated into your Will – which is often a flaw with basic Wills. Beneficiaries may then find themselves with no alternative but to inherit significant assets, which could be detrimental for tax-planning and asset protection purposes.
What if I have underage or disadvantaged beneficiaries?
If any of your beneficiaries are under the age of eighteen (18) years, then their share of your estate must be held on trust (subject to your executors’ ability to advance funds early for the purposes of maintenance, education, etc.) You can also specify a higher age, as you deem appropriate.
For children under the age of eighteen (18) years, you can also appoint a guardian, who will assume responsibility for your children’s care until they reach the age of majority.
Where one (or more) of your beneficiaries is disadvantaged to the extent that they are not able to sensibly deal with their inheritance (i.e. mental impairment, spendthrift, etc.), you may establish a trust to hold their inheritance, thereby allowing for its proper application.
How do I leave someone out of my will?
At law, a Willmaker is obligated to make provision for anyone to whom they have a responsibility, such as their children, spouse or any other persons who are dependent on them.
However, we acknowledge that everyone has their reasons for the way in which they wish to distribute their estate, which can often mean the exclusion of a person or people to whom they would normally be obliged to provide for.
If you are intending to exclude someone from your Will whom may otherwise be eligible to make a claim against your estate, it is highly recommended to seek expert legal advice on how this can be achieved.