Why should I make a Will?

Just as we control our financial and business arrangements during our lifetime, we should say how our financial affairs are to be dealt with after we die. A valid Will prevents the confusion and saves your loved ones time, money and effort. You really owe it to your loved ones to ensure you have a valid up to date Will which reflects your wishes. A failure to do so passes the burden of sorting out your affairs on to others and often will result in your wishes not being able to be carried into effect.

Who should make a Will?

All legally mentally competent adults should make a Will. People with a disability can make a Will provided they understand what they are doing and know what their assets are.

When should I make a new Will?

You should review your Will regularly and at least every 2-3 years to ensure that it does not become out of date. Any number of changes to your circumstances may affect your Will including, marriage, divorce, children, the sale or acquisition of assets.

What exactly will my Will do?

A Will is a legal document that:

  • Ensures that your assets will be distributed in accordance with your wishes to your beneficiaries. This may include important personal items such as family heirlooms and jewellery.
  • Appoints one or more people as executors who will apply for probate if it is required, ensure your debts are paid your assets are found and distributed correctly and to hold money in trust for any underage beneficiaries.
  • May appoint guardian(s) for any children below the age of 18.
  • May set up a trust and direct how assets are to be invested and used by beneficiaries who are not able to deal with the assets themselves (see section on Testamentary Trusts).
  • May include instructions for your funeral, burial or cremation.

Will my superannuation death benefits form part of my estate?

Not necessarily. In some circumstances the superannuation fund trustees are responsible for the distribution of death benefits to the member’s legal representative (executor) and/or one or more of the member’s dependents. Unless the member has entered into a Binding Death Benefit Nomination (BDBN), the fund trustees have a discretion (despite any non binding nomination made) with respect to the beneficiaries of the benefit and in what proportions. There are strict rules for BDBNs, including that it must have been signed, confirmed or updated in recent times, often within the previous 3 years. The advantage a BDBN offers is protection against a challenge to the member’s Will in relation to that asset. However it also has disadvantages in certain circumstances.

Why should I see a lawyer for a Will rather than a Trustee Company?

Although the NSW Trustee and Guardian (Public Trustee) and other trustee companies may not charge for drafting a Will, provided you appoint them as executor, commission and other fees are charged when the estate is to be administered after your death. These fees and charges far outweigh the costs you pay Solari & Stock to prepare your Will. The fee charged by Solari & Stock for preparation of your Will is a small investment to ensure your wishes are carried out after your death. Further, at Solari & Stock we only charge the scale rate set by the Supreme Court to obtain a Grant of Probate if required, and on a time basis in relation to the transfer of assets, not on a commission based on asset value as the trustee companies do.

Why should I see a lawyer rather than make a Will myself?

There is no requirement that a lawyer draft your Will but there have been many Court cases where home made Wills were either unclear, not properly drafted or caused an unwanted tax liability. If your Will does not meet certain requirements of content, form and signing it will be invalid. The relatively small fee that Solari & Stock charge for drafting a Will is an investment to ensure that your wishes are carried out and that your loved ones are not put through unnecessary cost or inconvenience of a Will that has not been prepared by an experienced professional who knows the law. Your Will deals with all of the assets you have worked hard to acquire in your life. To leave the passing of such significant sums of money to a home made Will is false economy. The risks associated with that far outweigh the peace of mind you have, in knowing your affairs are in order and your loved ones future security is assured by having Solari & Stock prepare your Will.

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