Wills & Powers of Attorney

Why Should I Have A Will? 

To protect your loved ones from potential anxiety and conflict following your death, it is a wise investment to obtain a professionally prepared Will. A Will is a legal document that outlines your wishes for the distribution of your assets upon your passing. Our team of professionals have the knowledge, skill and to assist you to construct a Will that provides you and your family with genuine security. 

Passing Without A Valid Will 

If you do not have a legally valid Will your estate will be administered pursuant to the statutory laws of intestacy, in lieu of your wishes. Therefore, it is important to seek advice from our team when preparing and executing your Will. 

Updating a Will 

A Will is never a static document. Most people will change it in somewhat throughout their lives, particularly when their circumstances change significantly; for example, due to marriage, divorce or the death of a beneficiary. 

If you have been meaning to update your Will, we strongly advise you to get the process moving—even if that involves having what you feel may be a difficult conversation. 

Things to Consider when Making a Will 

Most people don't want to contemplate death. This can be one of the biggest reasons we put off writing a Will and instead tell ourselves, “I’ll do that one day soon”, the problem with that however is, ‘one day’ doesn’t always come. 

The thing we really must realise is this: writing a Will isn’t nearly as confronting as you may think it is. 

 In fact, it can be a very empowering thing to do. Knowing Your Estate will be put in the right hands and managed well on your behalf is an incredible feeling. The worst thing would be, not to have a Will, and the State, potentially take control of your assets and a good portion of your assets not every being given to those you want them to go to as much of the money is eaten away with estate administration costs. 

Instead of thinking it to be a daunting task, think of it as something you are doing to take control of your wishes and not leave anything to chance. Look after those you love in the way you really would wish to. 

Preparing a Will 

In saying all of that, preparing a Legal Will is the best way to ensure that when you do pass away your estate is distributed according to your wishes, and your family and loved ones are looked after. 

Below, please find our 5 easy steps to help you make your WillStep

1: Consult a lawyer with expertise in Wills and estates 

We at ABA Lawyers can help ensure that your Will is valid according to the law and that it adequately expresses your wishes. This is most important. 

If you choose to make your Will using an online or postal 'Will kit', it may be difficult to know whether it includes all the necessary information. You won’t receive the benefit of having personalised legal advice about the best way in which you can distribute your assets. Legal advice about your important Will explains the risks associated with the decisions you could make without understanding the consequences. 

Step 2: Provide Supporting Documents 

The laws governing the legal requirements for preparing a valid Will in Australia vary from state to state. However, for a Will to be valid there are some basic requirements: 

• When creating the Will, you must have testamentary capacity (which means you must be over 18 years old and understand what you are doing). 

• The Will must be in writing (whether handwritten, typed or printed). 

• The Will must be Signed, and your Signature must be witnessed by two people over the age of 18. 

• Those two witnesses must also sign the Will. 

Step 3: Plan ahead - Here are some questions you need to consider. You must make sure the correct information contained in your Will is up to date and reflects your wishes: 

1. What are the full names and details of the chosen beneficiaries? 

2. What are the full names and details of the chosen executor and/or trustee? (You can have more than one of both.) 

3. How would you like to allocate and divide your property and possessions? 

4. Do you require any guardianship clauses for children? This is particularly relevant to same sex couples, as the right to guardianship varies across Australia. 

Step 4: This is very important: Keep your Will in a safe place 

It is very important your will is in a safe secure place and perhaps even let someone you trust know where it is. There's no need to file it with any particular organisation but once you have signed off on it, keep your Will in a safe but accessible place. Many of our clients leave their Will with us in our Securities for their safe keeping. This is a free service which we do not charge you to safeguard you most important document. 

Step 5: Appoint your Executor and Trustee 

When you make a Will, you need to appoint an Executor 

The Executor of your Will is acting on your behalf to look after your estate once you have died. You want your executor to be the right person to choose to basically take care of all the business you have conducted throughout your life. They are there to finalise everything on your behalf, sort of like what a liquidator would do to wind down a business. It is important to have the appropriate person do this on your behalf. 

The Trustee (must be the same person as the executor) is often appointed to administer any trusts set up in the Will. You usually have a Trustee if you are leaving assets to people under the age of 18. 

When choosing an Executor/Trustee (you may choose more than one of each), you should first ensure that they are comfortable taking on the responsibility and performing the role. 

Keep in mind that it is often wise to appoint someone younger than yourself, or to nominate reserve beneficiaries, in case the people you have appointed happen to die before your estate has been resolved. You also have the option to appoint the Public Trustee to do the job for you, if needed. 

The Executor of a Will must: 

• Collate together all the deceased's assets 

• Pay all the deceased’s individual debts 

• Distribute the deceased's estate in accordance with their Will.

Contesting A Will

If you believe the will maker was not mentally capable; does not give a share (or adequate share) to a spouse, child or step-child; is without a clear meaning or not in the strict format of a Will, then certain Applications can be made to the Court to address these matters. Some contests may be able to be settled outside of court. Strict time limits apply to such Applications, so we advise you to contact our team without delay to discuss your best course of action. 

Superannuation Entitlements 

Superannuation does not fall as a part of the estate as it is the trustee of a superannuation fund who has the duty to distribute the death benefits of a deceased fund member. We can however help you complete the necessary Applications to have the benefits paid to the estate so that the funds may be distributed according to the Will (if one exists) or advise whether a person may have a right to make an application as a claimant to some or all of the funds. If a decision has been made regarding the distribution and you wish to contest the same, we can assist you also in that regard. 

Enduring Power of Attorney 

An Enduring Power of Attorney allows you to appoint another person (your “Attorney”) to make decisions for you in certain circumstances should you become temporarily or permanently unable to do so. Such decisions usually involve those that relate to your financial or health issues.