Putting together a last will and Testament will help you rest assured that your Estate (property that you own) is handled the way you wish after your passing. You are able to put one together yourself, however, if mistakes or something is unclear your Will could potentially become invalid or create extra legal costs which could come out of the Estate. This is why it’s best to engage the services of a lawyer who is experienced in the preparation of Wills who will ensure that your final Will & Testament is valid.

Some situations are more complex than others, so it’s highly recommended that anyone fitting the following categories seeks the help of an expert when preparing their will:

    • Your child or beneficiary has special needs or disabilities. 
    • You own several assets, complicated assets or international assets. 
    • You wish to exclude someone from your Will who might be entitled to benefit. 
    • Entities such as trusts, a privately owned company, superannuation or partnerships. are involved.
    • You own intellectual property rights (patents, licences, copyright or other rights which will extend after your passing).
    • You are seriously ill, in hospital or of advanced age when preparing your Will.
    • You’ve been married previously or are in a domestic relationship.
    • You or your partner have children from previous relationships.
    • You are an owner or part-owner of a business that forms part of your estate.

HOW CAN A LAWYER HELP?

There are many ways that a lawyer can help when you are preparing your final Will & Testament, but here are just five important ways that a lawyer can help.

They will ensure your Will is complete

A lawyer will make sure that your Will is valid and complete by ensuring it is correctly prepared, signed, witnessed and conforms to state and federal legislation. They will ensure that all details – including beneficiaries, gifts, bequests, executors, etc. – are clear and can be dealt with at the time of your passing.

Advise how to best arrange your Estate

A lawyer will not only ensure that your Will is valid, but they will also ensure that you have expressed your final wishes in the best way possible and that nothing is left to chance. For example, arrangements will be made for unplanned happenings, such as what happens in the event that any of your beneficiaries die before you.

Asset management

It is recommended that if you own a number of assets that you enlist the help of a professional. An experienced lawyer will be able to help you identify and compile a detailed list of all the assets and liabilities in your name, any assets you own with someone else, assets that others may claim they have rights to, business interests, future assets (such as superannuation) and any debts owing to you and which you owe. This way there will be no confusion when it comes time to execute the Will.

A lawyer can then help you identify which of these assets can be included in your Will, as some assets and properties cannot legally be included. This is especially helpful when it comes to trusts, jointly-owned property, insurance policies, and other similar assets. A lawyer can also advise you on the best ways to reduce potential capital gains tax that comes from any gifts you make.

Choosing an executor

An executor is the person or trustee that you elect to manage your Estate after you die. The executor is named in the Will, giving them the power to deal with your Estate in accordance with the terms detailed in your Will. A lawyer can give you a deep understanding of the responsibilities of an executor and help you to pick an appropriate executor or executors.

Can a lawyer be an executor of a Will?

Yes, a lawyer can be the executor of a Will. The person you choose could also be a friend or family member, or a professional such as an accountant. Keep in mind that the executor needs to be able to understand basic accounting and be comfortable dealing with a range of people and institutions, such as family, banks and lawyers. They may also need to deal with beneficiary disputes such as claims being made against your Estate, which is where the appointment of the lawyer, even as a joint executor, can be invaluable.

Do lawyers keep copies of Wills?

If you engage the services of a lawyer to write your Will, you should be able to leave that Will with your lawyer for safekeeping, ensuring that the named executor or executors are able to arrange access to your Will after your passing and then work with the lawyer to handle your estate.

Advice on how best to provide for your family

You may want to leave everything to your family, but sometimes legal rights and obligations can hinder this desire. A lawyer can advise you on the best way to provide for your spouse or de facto partner, children and other dependents in the event of your death – arrangements such as providing a trust or naming a legal guardian. They can also let you know what your legal rights and obligations are to others (e.g. former partners).

If you want expert advice on writing and preparing your final Will and Testament, get in touch with the team at Eales & Mackenzie. Our experienced lawyers have extensive knowledge and experience preparing Wills, Estates and Succession Planning. Call us on (03) 8621 1000 or email advisors@emlawyers.com.au