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Catherine Schettini

- 8 Oct 2021
  • Wills & Estates

When you should prepare a will

The right time to prepare a Will is now. It may be too late to think about your testamentary instructions after an accident or sudden illness. Preparing a Will should be carefully considered and not a reactive decision in response to an unexpected event.

Many people think that only the elderly need to prepare a Will. They do not want to consider that they may be in an accident or become suddenly seriously ill. 

Every adult, young or old, has their own “estate”. Even if you do not own real estate, the things you do own, such as furniture, investments, vehicles, jewellery or digital assets are still important. The value of your estate does not matter; the important thing to consider is what happens to your assets when you die. Ideally, you should start writing your Will at the age of 18.

 

HOW OFTEN SHOULD YOU UPDATE YOUR WILL?

Your Will does not “expire” due to the passage of time. Therefore, it is important that you review your Will every five to seven years to ensure that it accurately represents your wishes at the time.

You should also review and update your Will after a significant life event such as the loss or acquisition of wealth, death of a close family member or other family changes.  It is also important to update your Will if your appointed executor becomes unable to act in this role.

Some instances in which you should update your Will are outlined below (this list is by no means exhaustive):

 

Separation

If you are going through a separation or divorce, you should immediately update your Will to protect yourself, even if your divorce or separation has not been finalised.  

If you die before your divorce is finalised through the Family Court of Australia, the law considers that you are still married to your spouse. Any existing Will you may have prepared during your lifetime will remain in force. This probably will benefit your soon-to-be-ex-spouse.  If you die before your divorce is finalised and do not have a Will, under the laws of intestacy, your soon-to-be-ex-spouse will be entitled to the majority of your estate.

 

If you have children

If you have children, you should review your Will to ensure that your child’s future is protected in the unfortunate event that something happens to you. It’s recommended that you update your Will after every child to ensure that your family’s best interests are reflected in your Will.

It is important to sit down with a lawyer and ensure that your children will be financially cared for. This can be through ensuring that your Will contains a trust for the benefit of your children, both whilst they are minors and older. In your Will, you can also nominate a guardian for minor children, and, if you wish, direct money to the guardian to assist them in raising your children.

If you die without a Will and have minor children, then any inheritance they are entitled to will be managed by the Public Trustee until they reach 18 years of age. You will have no control over their inheritance, and you lose the ability to direct funds for their education or upbringing, or to assist their guardian.

 

If you get married

It is important to note that your Will is automatically revoked by marriage. Therefore, you must rewrite your Will after your marriage, even if the same terms are to be repeated.

 

If there are significant changes in your wealth

If your financial situation changes, either for the better or the worse, it is important to review your Will. This will ensure that whatever you own at your date of death, is distributed to the people, and in the proportions, that you intend.

 

If you establish a Company or a Family Trust

Assets owned by a company or a family trust cannot be bequeathed in your Will.  However, in your Will you can direct who takes control of a company or a family trust in the event of your death and, therefore, who gains control of the assets that they own.

DBH Lawyers can help you prepare your first Will or update a Will. The process is straightforward and gives you peace of mind for the future.