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Do I need a Will? What happens if I don’t have a Will?

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You don’t actually need a Will. In our experience though, people don’t actually choose to not have a Will, they just never get around to thinking about whether they should or shouldn’t have one.

 

It is ok to not have a Will. If you die you die intestate and in South Australia the Administration and Probate Act dictates what happens to your estate and who gets what. So, if you are content to have no input into what happens to your possessions after you die and no input into who is responsible for managing your affairs after you die and you are content to create additional burdens upon your survivors then not having a Will might be the right choice for you. If so, read no further.

 

If, however, like most people who turn their mind to what they would like to happen to their body, their possessions, their social media accounts, and their children after they die, you decide that you would like some say in matters then you ought read on and you ought have a Will.

 

Wills do not need to be complex. Wills can be cheap, quick and easy and still so everything you need them to do after you die. It only becomes necessary to have a slightly more complicated will if your family situation is complex – for instance, you have a blended family, children form separate marriages (or out of marriage), children with special disabilities or you are a trustee or appointor under a family trust or you use companies to conduct your business.

 

For most people the cheap, simple, quick and easy will is enough – provided it is done well by a lawyer.

 

Your will needs to appoint one or more people to act as your executor. That is the person who will administer the estate and if necessary apply for probate. You can have more than one executor. 

 

Your will can make requests as to your type of unreal and set out instructions for dealing with your body. For instance, you might wish to specify in your will that you wish your body to be available for anatomical or therapeutic study after you die or for organ donation (you should also register for organ donation at http://www.humanservices.gov.au/customer/services/medicare/australian-organ-donor-register if organ donation is particularly important to you. Your driver’s license declaration is not enough to ensure your organ donation wishes will be carried out.)

 

You might like to specify a particular type of funeral service or a particular tye of church service or mass.

 

You might like to specify the manner of your wake.

 

Next you ought think about any specific gifts you might like to give. For instance, is there some family heirloom that you wish to ensure continues to be passed on in a particular way? You might like to give something of particular sentimental value to a friend which you know they would appreciate perhaps more than your family members. You might also like to make a charitable donation.

 

In recent years it has also become necessary to deal with social media. It is distressing to family of deceased persons if, say, a Facebook page continues on long after the person has died and continues to receive comments, likes or friend requests. What about the information you have left in the cloud? Most people would prefer that their family have their digital records and data as opposed to it being left in cyberspace.

 

You then ought be thinking about the division of your estate amongst the people who may be deemed to have an interest in it. Generally your spouse, children, grandchildren and parents. You might see a need to give one of the family members a bit more than the others for a legitimate reason – perhaps they have no assets and are in receipt of a disability pension and are not likely to ever be as well off as another child? Perhaps a child or grandchild has a particular educational need or medical treatment need that requires them to receive a little more than some of the other members.

 

Finally, but most importantly, you might like to express a wish as to who would look after your children if you were the last parent to die.

 

None of these issues are adequately dealt with if you do not make a will. All of these issues are able to be dealt with in a quick, cheap and standard will. From our perspective there is no good reason to not make a will if any of the above matters warrant consideration in your personal circumstances.

 

What about a will kit that is cheap or free?

 

If you have decided you need a will that is good. Your next choice is whether to use a lawyer to prepare it or not. 

 

There are cheap and often free will ‘kits’ on the market. It is possible that such kits may be perfect for your needs, but it is important to note that not all kits are made to be State specific. Each State has its own legislation for wills and there is some risk that if you are using a will kit designed for another State that you may have issues. The biggest problems we see with kits, though, is the way people fill them out and execute them. Often we see will kits that have been completed (apparently fully) by the testator and even signed by the testator. That alone is not enough to make the will valid. It also causes a lot of grief in getting a grant of probate of the will. Will kits often lack enough variables to adequately deal with everything that may be of concern to you.

 

Naturally, as lawyers who prepare wills, we recommend that you see a lawyer (and preferably us) to make your will. Understandably, that may come across as self interest on our part. What we note though is that the cost of a simple will is relatively cheap compared to the cost of dealing with an informal will or an invalid will from a kit and all of the consequences that can flow from not properly using or executing a kit will.