Making a Will
WILL MAKING: PROCESS AND CONSIDERATIONS
Our process
At Merton Lawyers we take pride in taking the time to understand your exact circumstances, to ensure the documents we draft are right for you. Our Wills are bespoke, and this offers you flexibility and control that cannot be achieved by using a will kit. Our process is:
You have a conference with our solicitor.
You should allow 60 to 90 minutes for this appointment (depending on the complexity of your circumstances). You don’t need to do anything to prepare. We use this time with you to interview you thoroughly to understand both your current circumstances, and wishes upon your death.
We will also provide you with information about the roles and appointments that you will need to make in your estate planning documents.Our solicitor drafts your documents and provides these to you by email for your review and comment.
If you have requested amendments, we make these and return the documents to you for review again. We are happy to provide as many amended documents to you as you require; it is so important that you are happy with how we have communicated your wishes.
Once you approve the documents, you attend a second conference with our solicitor (and a second witness provided by Merton Lawyers) to execute the documents in the specific format that is required by the Wills Act (Victoria) 1997. You should allow an hour for this appointment as you will be asked to read the document thoroughly during the conference prior to signing and both witnesses need to ascertain and be satisfied that you understand the contents and operation of each document.
We will write to the Attorneys that you have nominated as their acceptance to their appointment is required. We send them a copy of your document, the “Statement of Acceptance” that they are required to complete and provide them with a reply paid envelope to send it back to us.
We provide you with copies of your documents (by USB or a hard copy bound booklet) and store the originals in our Deed Safe for our secure keeping.
What you need to consider- Appointments
The main appointments in a Will are that of Executor/s, Guardian/s of infant children, and Beneficiaries of your estate. Using a solicitor to draft your Will allows you to discuss various matters with someone familiar with the operation of these roles and can suggest various matters that you should take into consideration when making these appointments.
Executor
The role of Executor (or executors) is an administrative one, with the main responsibility being to ensure that the terms of the Will are carried out. The basic duties of an Executor are to collect the assets of the deceased, pay the debts of the deceased, lodge final tax returns for both the deceased and the estate, pay the debts of the estate, distribute any specific gifts made by the deceased in their Will and then distribute the residue of the estate to the beneficiaries under the Will. Other duties may include: making funeral arrangements, notifying authorities of the death of the deceased (Centrelink, Medicare, Vic Roads etc.), arranging receipt of the death certificate, identifying property belonging to the deceased and dealing with their personal effects, preparing any real estate for sale, and dealing with any corporations necessary to call in and sell the assets of the deceased, as well as defending any claims against the estate in a dispute. The Executor has personal liability (and risk) to carry out the roles and responsibilities of their Appointment.
An Executor will typically engage an accountant and a solicitor to assist them in carrying out their roles and responsibilities. Despite this, the role of Executor can be more involved, complex and stressful than many people realise. Where there is a testamentary trust, or there are infant children who will not receive their inheritance until adulthood, it is also a role that may continue for many years.
Guardian
One of the most important decisions that you need to make as a parent is who would care for your child/ren if both parents were to pass away before they reach adulthood.
The appointment of a Guardian will be based on deeply personal considerations, and what will be appropriate will vary greatly for each family.
At your initial solicitor conference you will have ample time to discuss the many considerations that you need to weigh up in making your appointment. We will provide you with invaluable insight into the common matters that families consider when making this decision, and how the ongoing care of your children would operate in practice; especially the interaction between Executor and Guardian that will be ongoing.
Beneficiaries
A beneficiary is someone nominated by the deceased to receive a gift of money, or property under the terms of the deceased’s Will.
While the deceased does have the freedom to leave their estate to whoever they wish, this freedom also needs to be balanced with obligations imposed on the deceased to provide for certain categories of people at law.
At law, a person has an obligation to provide for those who have been dependant on them at the time of their death; these provisions are made under the Administration and Probate Act (Victoria) 1958. It is under this same legislation that a person who feels they have not been adequately provided for by the deceased can make a claim against an estate (if they are an eligible claimant).
During your solicitor conference we will ascertain the potential beneficiaries in your family and particular circumstances, and can provide advice to you on how to minimise the risk of such a claim being made upon your death.
When should a Testamentary Trust be applied
A Testamentary Trust is a discretionary trust that is contained in a Will and commences operation (if activated by the trustee) upon the death of the will maker (the deceased).
A Testamentary Trust is typically used to protect assets, and it achieves this by depositing the inheritance of a beneficiary into a trust, that is operated by a trustee for the benefit of that beneficiary, rather than passing to that beneficiary outright upon the death of the deceased.
A Testamentary Trust should be considered where:
Your beneficiary may be vulnerable to a drug, alcohol or gambling problem;
Your beneficiary has mental health concerns or a mental illness;
Your beneficiary has a disability or is caring for a child who has a disability;
Your beneficiary is in a relationship that is vulnerable to divorce or separation and you want to protect their inheritance from any property settlement between them; or
Your beneficiaries are at risk of becoming bankrupt.
As well as providing a degree of asset protection, a Testamentary Trust can have significant tax advantages that can be utilised by a beneficiaries (particularly where the beneficiary is a minor) by way of allowing the recipient beneficiary to split them income with their own family members who may fall into a lower tax assessment bracket then the beneficiary. This does have ramifications because it is considered a distribution to such persons, and they are entitled to receive the money or have it accounted for to ensure that it was spent on them in a reasonable manner relevant to the circumstances.
What is not included in a Will
It should be noted, that a Will cannot actually deal with all of a person’s assets, but only the assets that are in the person’s name solely at the date of death. Common assets that do not form part of the estate after death include:
Jointly owned assets including property, shares and bank accounts. Upon death these all pass automatically to the other joint proprietor automatically.
Superannuation, Life Insurance and Trust Assets- all of these assets are held on trust, separate to the trust created by a Will. They are governed by their own trust documents and in the case of superannuation and insurance are best dealt with in estate planning by delivering nominations to the trustees of the superfund or insurer.
We may recommend that you compliment your Will with the advice of a financial planner to ensure that all of your assets (those inside and outside the Will) are dealt with in the most effective way for those you wish to provide for.
Where to next?
Contact us on (03) 9645 9500 or email our Estate Planning team at estateplanning@mertonlawyers.com.au for a quote or a no obligation initial discussion about how we can assist you.
