Your Will

What is a Will?

A Will is a legal document that stipulates your wishes regarding personal matters and the distribution of your assets upon your death. It allows you the flexibility to provide gifts to various people and to ensure that your loved ones have been provided for after you pass.

Your Will also allows you to make provision for your children if you were to die before they become adults, by setting a guardian to care for them on your behalf.

A Will can even make provision for who may look after your pets!

Your Will is one of several documents that form part of your complete estate plan. You may also wish to consider a Power of Attorney and Advance Health Directive.

Why do I need a Will?

It is a very common misconception that your assets will be split between your nearest and dearest, even if you do not leave a Will. This leads people to the false belief that their wishes will be met even if they never write a Will.

The reality is that if you die without a Will, then the Succession Act 1981 (Qld) (‘the Act’) dictates how your estate will be divided. It is, therefore possible, that the way the Act distributes your estate would not match your wishes or what you intended.

Creating a Will is the only way to ensure that your assets are distributed in the way that you want, maximising the power you have to decide what happens with your estate. It’s not just who receives a division of your estate that you have more power and control over if you write a Will.

The power of a Will also extends to matters such as:

• who you would like to be the executor (the person who will administer the content of your Will, including distribution of your assets);
• who you would like to be the guardian of any children you may have who are minors at the time of your passing; and
• providing for any specific gifts, life personal items, artwork or charity donations.

The Act is very strict and unfortunately, does allow flexibility for the allocation of various gifts to people as you may have wished. For example, if you have jewellery which is sentimental in your family, a Will can stipulate which of your family members you would like each of the pieces of jewellery to be given to you when you pass away.

The Act also allocates specific percentage shares of your estate based on people’s relationships with you. If you would prefer to allocate more or less of your estate to certain people, then you will need to ensure this is set out in a Will.

Can I make a Will?

Provided that you are over 18 years of age and have mental capacity, you can make a Will. If you have previously made a Will and would like to update your wishes, you can make a new Will which stipulates that any past Wills are revoked.

Need to write your Will? Call today: 1800 001 339

What is involved in creating a Will?

Creating a Will does not have to be a long, confusing, or difficult process. In fact, it can be quite simple and straightforward! That said, it’s important that you seek the assistance of a lawyer to draft your Will to ensure that it is drafted in a valid way and to minimise any potential for a person to challenge that Will.

The process of creating your Will generally involves us sitting down with you to understand your wishes and take your instructions. We will then prepare a draft Will for your review, which can be updated to ensure all your wishes are reflected. Once you are happy with the draft Will, we will finalise it and have it validly executed. For a Will to be valid, the execution of it requires various procedures under the Act to be complied with, including the Will being witnessed by two independent people.

How long does it take to prepare a Will?

The time taken to prepare your Will is dependent on the complexity of your estate and your distribution wishes. Generally, a Will may take 6 weeks to complete but could take less time if your estate is simple and you have few wishes (eg, all of your assets to go to one person).

Where should I store my Will?

It is vital that your Will is stored in a safe place; safe from fire, flood and theft.

You may like to store your Will yourself or if you would like to keep your Will with us, we are able to store it for you.

You may want to consider providing a copy of your Will to the person(s) you have appointed as executors or a family member. To ease the burden on your family when you die, your original Will should be stored in a place that is easy to locate.

If your original Will cannot be located after your death, this adds a considerable degree of complexity when going through probate. This can cause added difficulty in distributing the estate in a reasonable time frame and with minimal costs.

Why you should seek legal advice when drafting your Will

There are several important factors that may influence how and whether your wishes can be carried out, which need to be considered when drafting a Will. It is possible that there are some things you may not have considered including in your Will that we can assist you to begin thinking about.

There are also strict signing requirements to ensure that your Will is valid and binding, and able to carry out your wishes.

All these considerations require expert knowledge and experience that IM Lawyers has, to assist you with planning your estate and drafting your Will.