Estate Planning: Do I need a Will?

Estate planning is often not at the forefront of everyone’s minds, but it should be.

A common question we often get asked as lawyers is why do I even need a will?

The answer is that almost everyone needs a will, regardless of how substantial their assets may be. A person who dies without leaving a will (intestate) does not get to choose who the executor of their estate will be, nor who is to inherit his/her assets as these matters will be dealt with in accordance with the laws of intestacy, which may ultimately not reflect the deceased’s wishes.

It is also important to consider that disputes over a deceased’s estate are unfortunately common nowadays, regardless of the value of the estate, and in our experience, estate disputes often result in irreconcilable family relationships.

The purpose of this article is to provide the reader with a starting point of what to think about when making your will and these are outlined below.

What to think about when making your will.

1. Who will be your executor/s: an executor is the person named in the will who is tasked with carrying out the will-maker’s wishes upon their death. People often appoint their spouses, family members, close friends or even legal practitioners such as ourselves. It is best that your executors reside locally so that it will be easier for them to take on the affairs of the estate. If a legal practitioner from Eales & Mackenzie is appointed to act, it is important to note that we do not charge any additional fees or commission to act, other than ordinary estate related expenses and disbursements.
2. Are there any specific gifts (jewellery or personal items) or charitable donations that you would like to make?
3. Who do you nominate to be the beneficiary/beneficiaries of your estate and how do you want your estate distributed? i.e. on a percentage basis or by specifically defined gifts or legacies.
4. If you have children under 18, you should consider nominating a testamentary guardian who will be responsible for taking care of the child’s long-term needs in the event of your death and no other surviving parent.
5. Think about your superannuation. Generally, superannuation will not form part of your estate and so it is important to make sure you have a death benefit nomination in place with your super fund that nominates a beneficiary. In any case, you should consider having a discretionary clause in your will allowing the executor to call in your superannuation proceeds to your estate. This is in case you were to pass away and at that time there is no death benefit nomination in place.
6. If you have any specific requirements concerning your burial, cremation or organ donation, it is a good idea to specify these requirements in your will.

Seek professional estate planning advice.

Estate planning can become complex depending on the individual’s familial and financial circumstances and we therefore recommend that you seek specialist legal advice, not only to ensure that your will is properly drafted and contains all of the legal formalities and requirements in accordance with current legislation, but also to give you the peace of mind that your estate will be administered as efficiently as possible, in accordance with your wishes, leaving as little stress on your loved ones and minimizing the risk for dispute amongst family members.

Eales & Mackenzie have estate planning lawyers in Melbourne with significant experience in Wills and Estate Planning and we recommend that you get in touch with Fabio Salemi or Richard Mackenzie for further advice or information on 03 8621 1000 (Melbourne office) or 03 9331 1144 (Essendon office).