Creating A Will

Want to create a will? Some important tips to help you get started

Making a will is one of those things that many people know they should do, but put off due to the uncomfortable thought of mortality and the belief that death is something that will happen somewhere down the track – way down the track. However, if you own substantial assets and have loved ones that need to be looked after, producing a will is essential in ensuring that your beneficiaries are cared for, and that your property will be distributed in accordance with your wishes after your passing.

Once you have made the decision to make a will, there are a number of considerations that you need to be aware of before executing your will and giving it effect.

Why do I need to consider estate planning?

Besides, orderly estate administration, there are a number of other good reasons as to why you should have a correctly and professionally structured will, such as:

  • avoiding creditors of beneficiaries;
  • providing for beneficiaries who have special needs;
  • keeping your assets from enriching an estranged class of beneficiaries;
  • minimising taxes; and
  • business succession.

Some important steps when it comes to your will

Step 1: Identify the property you control

Most people probably can’t make the time to identify all of the property under their control, let alone consider which of those properties should be conveyed upon their death – however, this must be done. The first consideration after identifying what property you are in control of is to assess whether the property is capable of being disposed in your will. For property that cannot be conveyed in a will, the next step is to work out how to transmit such property. Assets such as superannuation interests, assets held in trusts or companies, or jointly held property need careful consideration if you wish to convey such property.

Step 2: Identify your beneficiaries

Identifying your intended beneficiaries is probably an easier process than identifying all of your property. However, keep in mind that beyond the obvious class of people such as spouses children or parents – consideration should also be had in regards to any other party who may be potential claimants, taking into account legislation and constructive trusts.

Step 3: How can outside factors affect your beneficiaries

The distribution of property does not happen in a vacuum, and real world considerations also need to be taken into account when planning your estate, and how those dispositions may affect your beneficiaries. Therefore, thought needs to be put into how issues relating to family law, tax, or insolvency may affect your beneficiaries. So as a consequence, your estate planning considerations should involve an assessment of all of your potential obligations, which may necessitate in making other arrangements in regards to your succession planning.

The elements of creating a valid will

In order for a will be validly executed, there are a number of elements that need to be present:

  • the will must be in writing;
  • the will must be signed by the testator or some other person in the presence and at the direction of the testator;
  • it must be apparent that the testator’s signature has been made with the intention of executing the will;
  • the testator’s signature is made or acknowledged in the presence of at least two witnesses who were also present;
  • at least two of the witnesses must sign the will in the presence of the testator. However, there is no requirement that the witnesses must be in the presence of the other;
  • there is no requirement that the testator’s signature must be at the foot of the will.

The dedicated team at Willis and Bowring are able to assist with all of your Estate Planning needs to ensure that the assets you worked hard for benefit your loved ones in the most appropriate way. If you wish to learn more about how we can protect your assets, please contact our experienced Estate Planning team of Lou Polito or Adeline Schiralli on (02) 9525 8100 today.