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Wills, Estates and Probate - The Importance Of A Will

December 2010

If you do not make a will and die “intestate” then your estate will be divided according to the law, regardless of your wishes.

The result is often not what you intended for your family. Property that you wish to keep in the family or provide to specific individuals may have to be sold. As an example the family home may have to be vacated and sold in certain circumstances.

Would you like to make special gifts or financial provision for children, grandchildren or other family members, friends or charities? If so you require a will.

A professionally drafted will not only determine various parties’ property rights it will appoint an administrator to make decisions and ensure your estate is distributed in accordance with your wishes. The choice of executor (or executrix when we refer to female administrators) and a substitute executor should be considered carefully.

The appointment of an administrator for the estate, who makes decisions including funeral arrangements, is important for surviving family members and friends. If there is a disagreement as to the funeral arrangements this uncertainty can exacerbate the trauma of family members and even lead to court if a difference of opinion cannot be resolved.

A trustee for the estate can be the executor or can be appointed separately. The trustee is equally, if not more, important than that the executor given the trustees ongoing role. This is especially the case when children are named as beneficiaries or grandchildren stand to inherit through their parents. Financial provision for their carers or guardians has to be considered.

Consideration must also be given to the choice of a testamentary guardian for your children, the proposed guardian should be made aware of and consent to their inclusion as a guardian.

Homemade or pro forma wills should be avoided as lawyers spend a great deal of time seeking rectification of or defending wills which are frequently challenged on a number of grounds.

You should consider and update your will if your circumstances change, for example:

  • Marriage or remarriage
  • Moving in with a partner
  • The birth of children and grandchildren
  • Divorce or separation
  • Retirement

The elderly often require Powers of Attorney and Enduring Guardians prepared if they wish their family to make decisions on their behalf or manage their affairs should they suffer a mental illness or disability.

Having a professionally drafted will is insurance for your loved ones, children and their children for the future.

Please Note: The information contained in this article is general in nature and cannot be regarded as anything more than general comment. Readers of this article should not act on the basis of this comment without consulting one of iLaw’s legal practitioners who will consider their particular circumstances