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A will is one of the most important documents that you will sign in your lifetime. A will is certainly not as simple as most people perceive them to be and accordingly it is not wise to utilise the ‘home-made’ or ‘newsagent’s’ will. It is important that when you decide that you need a will that you seek legal advice.
At Quinns our lawyers will assess your individual situation, discuss your options, and ensure that you are totally satisfied with and understand the content of your will. Quinns will also store your Will in its safe custody at no additional cost.
There are many frequently asked questions in respect to wills and will making. Should your query not be addressed below please contact Quinns.
Frequently Asked Questions (FAQ)
A Will is a document that states how you wish for your assets to be distributed after death. A will can also contain other provisions i.e. the care of your children if they are under 18 at the time of your death.
There are formal requirements for a valid Will, including that the document must be in writing, must be signed by you, your signature must be witnessed by two adults, etc.
If you are over the age of 18 and have assets (e.g. a car or a house) or children, then it is important that you have a will.
The consequences of failing to make a will are that the law may then act to impose a method of distribution of your assets. This may result in assets being given to someone to whom you do not wish to receive them and/or someone whom you wish to receive assets may be left ’empty-handed’.
Should you engage our services, you shall be provided with our Quinns Questionnaire for your perusal and completion. This questionnaire addresses a number of things for your consideration.
- What are your personal details (are you known by any other names).
- What assets do you own, and how are those assets structured.
- What are your liabilities.
- Do you have an existing Will.
- Who will you appoint as an executor (refer to D below).
- Who are your beneficiaries including their full names and addresses.
- Are there any specific gifts of personal property, for example, jewellery, gifts of a specific amount of money? You should consider specific gifts carefully as they may fail if the item is lost or destroyed (refer to glossary “ademption”).
- Is a testamentary trust appropriate for minors.
- Who will you appoint as guardians for any children. Have you consulted with them.
- Does your superannuation or insurance policy have a nominated beneficiary.
- Do you wish to leave a bequest to any charity? If so, you should contact the charity to obtain their full details, and ask whether they have any specific wording they prefer in Wills.
- Will the trustee require any special powers, for example, to enable the running of a business.
- Do you wish to be buried or cremated.
A “legal representative” of a deceased is the general term for either an executor or an administrator, and is the person responsible for looking after your estate.
An executor is appointed under your Will, and the appointment is confirmed by the Supreme Court as part of the probate application. If your Will does not name an executor, the named executor is unable to act, or you die without a Will, the person whom the court appoints to administer the estate is called an administrator.
Duties of the legal representative include, but are not limited to, the following:
- Organising your funeral or related service;
- Collecting, maintaining and protecting assets pending final distribution of your estate;
- Advertises intention to apply for probate;
- Applying for probate or letters of administration;
- Prepares and lodges documents for probate at the Supreme Court;
- Advertises intention to distribute assets;
- Paying all debts, funeral and testamentary expenses;
- Distribute the estate to residual beneficiaries;
- Investing assets pending distribution of your estate;
- Obtaining a tax file number and lodging any tax returns for your estate;
- Distributing the assets as directed under your Will or the laws of intestacy.
Often the family home is owned by a married or de facto couple as joint tenants (as opposed to tenants in common). As a joint tenant, on the death of one of the owners their share passes to the survivor despite the provisions of any Will.
A will should be reviewed at least once every 2 years or in the event of a marriage, divorce, entering into or leaving a de facto relationship, the birth of a child, the death of a beneficiary, acquiring property not contemplated by your Will or disposing of property gifted in the Will; if the executor dies or becomes unsuitable; if the needs or financial circumstances of any beneficiaries change; or if the will maker or a beneficiary becomes bankrupt.
A will may be affected by marriage or divorce if the Will is not specifically made in contemplation of the marriage or divorce. It is important to make a new Will in those circumstances.
The Succession Act allows a court to make an order in relation to the estate of a deceased person if your Will or the intestacy laws do not make “adequate” provision for the property, maintenance or support of an eligible person. An eligible person may include a spouse, de facto partner, same-sex partner, child, former spouse and a financial dependent such as a grandchild.
A claim under The Succession Act must be made within 12 months from the date of your death.
At Quinns we endeavour to avoid a claim being made against your estate under The Succession Act.
In New South Wales, legislation prescribes an order of death when two people die but the order of death is uncertain. The elder is presumed to have died first. For example, Justin (husband) aged 30 and Courtney (wife) aged 35 die in a car accident and it is uncertain whom died earlier. In New South Wales it would be presumed that Courtney died first and accordingly the Will of Justin will prevail.
Death benefit nominations are the different types of nominations for superannuation distribution. The four types of nominations are:
- Nominated beneficiary: This is an indication to the trustee of your wishes however it is not binding on the trustee
- Binding death benefit nomination: This nomination can be binding on the trustee however the person nominated must fall under the dependant definition of the superannuation legislation
- Reversionary benefit (income phase only): This nomination can be binding on the trustee however the person nominated must fall under the dependant definition of the superannuation legislation
- Beneficiary specified in trust deed
In most Wills, a gift is made to a beneficiary if the beneficiary survives you by a period of 30 days. This avoids complications where there is a common accident and the order of deaths is uncertain. It may also reduce the costs of administering the estate of a beneficiary who dies a few hours or days after you.
A will may certainly be revoked. A will is revoked by signing a later will that states that all earlier Wills are revoked or alternatively by burning or destroying the original will.
If you’d like more information or if you would like to discuss your Wills and Estate Planning needs. Complete and submit the Express Enquiry form or call us on +61 2 9223 9166 to arrange an appointment.
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The Quinn Group operates Quinn Consultants, Quinn Lawyers, Quinn Financial Planning and Quinn Financial Solutions. The Quinn Group provides related information in regard to legal, accounting and financial planning issues. Liability limited by a scheme approved under Professional Standards Legislation* *other than for the acts or omissions of financial services licensees.