A Will Explained
What is a Will?
A Will is a legal document that outlines how your assets will be distributed after your death. Your Will appoints executors and beneficiaries. Your executor will be responsible for administering your estate and ensuring your wishes are upheld.
A Valid Will
You must be eighteen years (18) or over and have testamentary capacity to execute a valid Will in Queensland. If you are under eighteen (18) years you may be able to make a Will only under certain circumstances. To ensure your Will is valid we suggest having your lawyer act on your behalf. An application may be made to the court to alter or revoke a Will where there is an issue with a persons testamentary capacity.
There are multiple issues which may affect the validity of your Will such as the correct execution and witnessing requirements. Will kits which can be easily purchased these days are at times contested on the basis they have not been executed properly in accordance with the relevant legislation. Even Will kits which are valid can cause additional costs in the administration of an estate if a complication arises.
The person making the Will must be aware and approve of the contents outlined in their Will. Your solicitor should read through your Will with you prior to having you sign the document. Where a person cannot read the document themselves we can make alternative arrangements which will ensure your Will is still valid.
What happens if you die without a Will?
If you die without a Will, or if your Will is not valid, you are considered to have died intestate.
If you die intestate the Queensland Succession Laws will then apply when your estate is being distributed. This may mean that those you care most about are not taken care of under you Will. The party who ends up executing your Will may take a portion of your estate reducing the benefit to your beneficiaries.
If you do not have any relatives your estate may be given to the government.
Executors & Beneficiaries
You should carefully consider the person or people you appoint as an executor. This person will be responsible for distributing your estate in accordance with legal requirements. They should be trustworthy whilst also having the capacity and competence to complete this task.
An executor will collect your assets, pay any relevant debts and distribute the remainder of your estate according to your Will.
When electing your beneficiaries our office can assist you in tailoring your Will to ensure your gifts are given on the basis you wish to leave them.
E.g. if you were leaving a gift to your grandchildren you may wish this to be conditional on them attaining a certain age.
Updating your Will
Once you have made a Will you need to ensure it is updated after or in contemplation of important life events such as:-
- Marriage
- Divorce
- The birth of a child
- The death of a loved one
- Retirement
- Changes to a beneficiary; and
- Changes to your assets.
If you are married after making a Will it will be automatically revoked unless it is made in contemplation of said marriage. Divorce will also affect the validity of your Will in so far as your ex-spouse is concerned.
What you might not know
Parents can elect to name a guardian of their children under the age of eighteen in their Will.
In the tragic event of the death of a parent a guardianship clause being included in your Will can help for your loved ones to understand your intentions for your child or children. This can prevent disputes or confusion.
Drafting your Will with Rapid Legal Solutions
If you are interested in drafting your Will with Rapid Legal Solutions contact our office and our staff can assist you to make an appointment. Rapid Legal Solutions has experienced solicitors available to take your instructions and correctly draft your Will to ensure your Will is valid and upholds your wishes. Rapid Legal Solutions offers complimentary storage of your Wills in our firm’s safe custody.
While a Will is a legal document designed to protect your wishes on your passing, you may need to consider a legal tool that can protect you while you are still alive. Consider having a Power of Attorney put in place to protect you in the instance that you no longer have capacity to make your own choices in this life. Please see our article on Power of Attorney for more information.
We all need to leave a clear legacy no matter how large or small our estates are and the only way to do this is to put it in writing. The best way to do that is to book an appointment with Rapid Legal Solutions to have your Will drafted.
Article posted 18 April 2016
This document offers general information only and should not be relied upon as legal advice under any circumstance. Please contact your solicitor for clarification on any areas.