Why do you need a Will in the first place?
Let’s look at this before we talk about the importance of regularly updating your Will.
If you have already made a Will then you understand its importance.
Everyone over the age of 18 should have a Will in place. No matter what your financial circumstances are. Because you never know what's going to happen.
If there is one thing the current worldwide pandemic has taught us it is to be ready for anything. And take nothing for granted.
You may think you don’t need a Will because you don’t have a lot of assets. But there will always be legal and other matters to be managed and finalised in the event of your death.
And no matter what your age having a Will means that what you do have can be dealt with in accordance with your wishes. This will remove a lot of stress from your loved ones at what will be an emotional and difficult time for them.
So don't wait too long to make Will. And remember to keep updating your Will. Because unexpected things can happen to anyone at any time.
Do most Australians have a Will?
Research by Finder.com.au based on a recent survey of over 2,000 adults aged over 18 across all states of Australia showed that on average 52% do not have a Will. 34% of those without a Will said they just hadn’t got around to doing it.
There was no strong resistance to the idea of making a Will. But our old enemy ‘procrastination’ seems to be the main reason for the high percentage without a Will.
14% of those with no Will thought they did not have enough assets or wealth to require one. This is a mistaken view because as noted below any assets or wealth requires legal and financial management.
This and other past research also identified another likely obstacle. Many Australians have little understanding of intestacy laws and the consequences of not having a Will. And of not updating your Will. This is worrying in light of the recognised problems caused by dying intestate and should be the motivation to write or update your Will.
What happens if you die without leaving a valid Will?
If you die intestate, without a valid Will, it makes things more difficult for your loved ones.
It means that instead of you deciding, the legal system determines the distribution of your estate. And these decisions may not be ones you would have wanted. There are also higher legal costs involved in dealing with intestate estates. And more delay.
Also these situations often cause family conflict which can be ongoing. Having a valid Will and regularly updating your Will ensures your nominated beneficiaries are provided for.
When did you last look at your Will? Does it correctly reflect your current circumstances?
Don’t worry if your circumstances have changed since you wrote your Will. Because amending and updating your Will is easy to do. You may have made your Will some time ago. Perhaps years ago. And many circumstances in your life are likely to have changed since then.
Our lives evolve and move in different directions over the years. Relationships change. Family responsibilities come along. Assets may grow over time. One day we hope to retire.
The Executor named in your current Will may have died. Or no longer be in good health or able to fulfil this role. You may have made provision for loved ones such as parents who are no longer alive. Your home address or that of other people named in your Will may have changed.
Remember that your Will is a part of your ongoing life and end of life planning. Its purpose includes protecting your assets and providing for your loved ones.
This means that it is important to review it regularly. Updating your Will is necessary, so that it correctly reflects your current circumstances. If you are not careful about updating your Will it could be more likely to be challenged or contested. And legal action of this sort can substantially reduce the value of your estate, as well as cause family conflict and unhappiness.
Specific events which might require updating your Will
There are a number of ‘triggers’ which can prompt you to make your Will for the first time. Or remind you about updating your existing Will. These are generally events which significantly affect our personal circumstances and which we should ensure are reflected in our current Will. These can include:
- Marriage, divorce, any other change of legal relationship (entering or separating in a de facto relationship).
- Having children, or grandchildren.
- Having ‘blended’ families with children from previous relationships. And perhaps the current relationship.
- The death of a loved one. Before undergoing major surgery. Or being diagnosed with a serious illness.
- Major changes to financial circumstances and personal wealth. For example buying or selling a home or other property. Or acquiring other assets. Setting up or closing down a business enterprise. Travelling or relocating overseas. Or perhaps receiving an inheritance which increases the value of your estate.
- Retiring. Just being at a later stage of life. Retirement planning. Restructuring your superannuation. Wanting to leave instructions with your super fund trustees.
Even just deciding to make an effort to get your personal affairs properly in order can be a trigger for making or updating your Will.
What changes you can make when updating your Will
The most common changes you are likely to make when updating your Will relate to the following:
- Amend, update or clarify asset distribution
- Add a beneficiary
- Remove a beneficiary
- Change executors, or
- Change guardianship instructions
Make sure your Will is prepared by a qualified professional
It is important to ensure your Will is prepared by an expert in wills. The same applies if you are updating your Will. This is much safer than writing your own Will or using a standard form document from the post office. There are legal requirements which apply to Wills particularly with respect to the witnessing of wills. So you need to make sure these are correctly followed.
Below are some general guidelines as to what information to prepare in advance of your meeting or discussion with your professional adviser. The circumstances and personal affairs of individuals vary greatly. Some may be fairly simple, others more complicated. This will affect the nature of the matters you need to consider and discuss whether you are making a Will for the first time or you are updating your current Will.
- List your assets and liabilities. Locate documents related to them.
- Bring copies of any earlier wills you have made.
- Give some thought to who would be a suitable executor or executors
- Consider how you would like your estate to be distributed.
- Are there other personal gifts or bequests you want to make in your Will?
- If you have pets you can specify how you would like them to be cared for.
- If you have children under 18 years of age you can nominate a guardian for their care and protection in the event of your death.
Other important end of life planning documents you should consider
An Enduring Power of Attorney (or Enduring Guardianship) is also extremely important and something you should consider arranging. It is designed to take effect if you are sick, absent or become incapacitated and are unable to make certain decisions for yourself.
An Enduring Power of Attorney specifically empowers your nominated attorney to make lifestyle, health and welfare decisions for you. Such as deciding where you live or what medical treatment you should receive if you are unable to make these decisions yourself. For more information from Anticipate Life on Enduring and other Powers of Attorney you can read our blog on the topic.
Make sure you store your Will in a safe place
Be sure to store your Will in a safe place and ensure that it remains in a pristine condition. Do not attach or staple any other document or paper to your Will or make any notes or marks on it as this may invalidate it. And it is very important to make sure you let someone know where it's located or stored. People such as family members or your executor or your beneficiaries.
If you keep your Will at home there is always the risk that it could be lost or damaged. You can consider keeping your Will and other important documents in safe custody elsewhere. Such as with your solicitor or in a government facility such as Trustee and Guardian’s Will Safe or Will Bank. Because if your Will can't be found when you die or is determined to be invalid, you will be declared intestate.
External safe custody can be used not only for your Will, but for any Enduring Power of Attorney or Enduring Guardianship, Living Will, or title documents to your home or other property.
Anticipate Life can also be used as a means of storing copies of your Will and other important documents. And your personal information and any end of life wishes. This easy to use web based application provides a single secure facility for storage of your key life information. Which you can change or update at any time.
For further details on this and other aspects of end of life planning, visit the Anticipate Life website.