What is a Will, and why it is important?

If you are intending to exclude someone from your Will whom may otherwise be eligible to make a claim against your estate, it is highly recommended to seek expert legal advice on how this can be achieved.

A Will sets out who is to receive the benefit of your estate and under what circumstances, after you have passed away.

There can be common misunderstandings about a Will. So, here are the top tips that you should know about a Will.

Executors

In addition to setting out who is to benefit from your estate, a Will also sets out who is in charge of ensuring your wishes are carried out – known as your executor.

You can appoint up to four (4) executors in your Will.[1] Alternatively, you can nominate a professional, such as a lawyer or accountant, to act as your executor. Appointing a professional to act as your executor can have significant benefits:

• Where there is the possibility of a family dispute over the division of your estate, appointing a professional to be your executor will help ensure your estate is administered impartially.
• Large and complex estates can often be very difficult to Administer. By appointing a professional to be your executor, they often have the requisite experience and expertise to deal with these matters and avoid common pitfalls.

What can I give away under my will?[2]

All assets owned in your sole name will form part of your estate to be distributed in accordance with your Will.

However, when considering what your estate comprises, it is important to consider that some assets do not automatically form part of your estate, including:

• Assets owned jointly with other persons.
• Assets held in a trust, such as a family trust.
• Superannuation and life insurance.

These types of assets are treated differently when it comes to their distribution following your passing. When planning for the succession of such assets, you should consult with your legal representative and/or accountant.

Testamentary trust wills

A Testamentary Trust Will allows your beneficiaries to direct some or all of their inheritance into a special trust set up by your Will, which may provide a more tax-effective way of holding and investing inherited assets.

These types of Wills can also provide increased protection for those beneficiaries who are, or may at a later stage be, going through a relationship breakdown or insolvency.

Testamentary Trusts are not able to be created at a later stage, if they are not incorporated into your Will – which is often a flaw with basic Wills. Beneficiaries may then find themselves with no alternative but to inherit significant assets, which could be detrimental for tax-planning and asset protection purposes.

What if I have underage or disadvantaged beneficiaries?

If any of your beneficiaries are under the age of eighteen (18) years, then their share of your estate must be held on trust (subject to your executors’ ability to advance funds early for the purposes of maintenance, education, etc.) until such time as they reach an age you deem to be appropriate to inherit from your estate.

For children under the age of eighteen (18) years, you can also seek to appoint a guardian, who will assume responsibility for your children’s care until they reach the age of majority. Keep in mind though, your appointment of a guardian could be challenged in court.

Where one (or more) of your beneficiaries is disadvantaged to the extent that they are not able to sensibly deal with their inheritance (i.e. mental impairment, spendthrift, etc.), you may wish to establish a trust to hold their inheritance, thereby allowing for its proper application.

How do I leave someone out of my will?

Community standards hold that a Willmaker should make provision for anyone to whom they have a responsibility to care for, such as their children, spouse or any other persons who are dependent on them.[3]

However, we acknowledge that everyone has their reasons for the way in which they wish to distribute their estate, which can often mean the exclusion of a person or people to whom one might normally consider provision should be made for.

If you are intending to exclude someone from your Will whom may otherwise be eligible to make a claim against your estate, it is highly recommended that you first seek expert legal advice.

How Can DSA Law Help?

If you are seeking advice regarding a Will and believe you could benefit expert legal assistance, please Contact Us or one of our Wills & Estate Lawyers at DSA Law on (03) 8595 9580.

---

[1] Trustee Act 1958 (Vic) s 40.

[2] Wills Act 1997 (Vic) s 4.

[3] Administration and Probate Act 1958 (Vic) s 91A.