We can explain a lot about Wills by looking at some of the relevant legal terms -
Testator/Testatrix – The Testator is a male person who makes a Will. The Testatrix is the female. Strange words, whose origin goes back to the Latin language. They are also called the Will Makers.
Executor – The Executor is an adult who works with the deceased’s lawyer to obtain a Grant of Probate and to ensure that the assets are distributed in accordance with the Will. One Executor is sufficient, but best to have two (you can have up to four), in case the first Executor declines, or is unable to act. And it’s desirable that the Executors be younger than the Testator/Testatrix – not much use having an Executor who dies before the Will Maker.
He/She died Intestate – No, that doesn’t mean they died in Sydney. It’s when the deceased dies without making a Will. Or, if there was a Will, it couldn’t be found. When this happens, a person interested in the estate, usually a married or de facto partner, has to apply to the Supreme Court for Letters of Administration in order to distribute the deceased’s assets. In a typical family situation, if Dad dies intestate, leaving Mum and two children, Mum would get the whole of Dad’s estate, and the children would get nothing.
Grant of Probate – When a person dies leaving a Will, the lawyer handling the estate, on the Executor’s instructions, will prepare an inventory of the deceased’s assets and liabilities and make application to the state Probate Office for a Grant of Probate, so that the assets can be distributed in accordance with the Will.
Joint Property – Many people don’t realise that jointly owned property (typically, the family home jointly owned by a married or de facto couple) is not treated by the law as an asset when one party dies – it goes to the surviving party, whether or not the deceased tried to leave it to someone else (for example, another relative of a friend). The same applies to joint bank accounts.
“I’m over 75 – can I make a Will?” – Yes, certainly, but your lawyer will probably ask you to get a letter from your doctor to say they have seen you recently and that you are mentally capable of making a Will. This has become increasingly important as the population ages and, with that, there is an increased incidence of cognitive impairment, such as Dementia/Alzheimer’s in the community. The last thing you want is for your Will to be challenged by, say, a relative, claiming you weren’t of sound mind when you made your Will.
What about super? – Superannuation is not treated as part of the deceased’s estate. Most people sign a Binding Death Nomination that directs their retail or industry super fund to pay the Death Benefit (which is usually significantly more than the balance in the fund) to the person nominated – typically their spouse. So, it’s important to make sure that Nomination reflects where you want the super to go, especially after a divorce.
What to include in a Will – As well as leaving real estate, shares and money in your Will, you can direct who is to have your pets, farm animals, cars, boats, furniture and the like – so long as they aren’t jointly owned. And don’t forget digital assets, including your social media login details.
What if I want to contest a Will? – This may happen when, for example, a child is left out of a Will, or they are given less than their siblings. An application needs to be made to the Supreme Court within six months of Probate being granted. The judge (no jury), will look at a range of factors, including the financial circumstances of the person who is asking the court to, effectively, rewrite the Will. Are they worse off than the other beneficiaries? Did the Will Maker give them less, or nothing, because their relationship with the person applying to the court had broken down? Going to court to contest a Will can be an expensive exercise. The costs of all parties are usually paid from the estate so, the bigger the estate, the more likely that someone left out of the Will, or who gets less than they thought they were entitled to, the more likely they are to challenge the Will.
Why can’t I just buy a Will kit, from a newsagent, or online? – Well, of course you can. But there are pitfalls – does what you write in the Will say what you actually want to happen? What if the two (you need two) witnesses don’t sign properly? What if you don’t properly explain why your children are getting unequal shares of the estate? All these things can go wrong if you do the Will yourself. Lawyers obviously charge for their time, and expertise, when drawing up a Will, and advising about estate planning (that’s a subject for another blog!), but really, it’s cheap insurance to make sure you get it right, and that what you leave when you go, goes to the people you intend.