Nobody ever wants to think about drawing up a will, but it’s an incredibly important thing to do, especially if you have children. Assets, such as a house, vehicles, investments, or anything else with a monetary value all need to be dealt with to ensure they go to the right person. To put an extreme example on it, when Michael Jackson passed away, he had not updated his will since 2002. As a result, his multi-million dollar estate is still going through massive legal battles to find out what should go to whom. These are the steps for getting a will drawn up in Australia, including what you should include and an explanation of some of the technical jargon.
For the most part, drawing up a will is as simple as getting in touch with your solicitor. There are some solicitors who specialize in doing wills, but nearly any solicitor will be able to either help you or point you to in the right direction.
You must be at least 18 years old in order to draw up a will. In very rare situations someone under 18 will be allowed to make one, such as if they have been given authorization by way of a court order. If there’s any question about your mental capacity when you’re making the will, your lawyer might ask you to see a doctor and provide an “assessment of competence” which would be kept with the will.
Australian law requires you to have what’s called testamentary capacity, which basically means that you know what your assets are, as well as a rough idea of how much they are worth. You also have to have the ability to decide who should receive your assets. You’ll also be asked to understand that your spouse and/or children should usually take priority over anybody else. For example, if you want to leave your home to your year 5 school teacher, your mental capacity might be questioned.
What Your Will Should Include
Wills will usually include three things: assets, rights, and specific belongings.
Assets: These are anything with value, such as properties, houses, money, bank account balances, or cars.
Rights: You can appoint the right to make decisions to someone else, such as giving your brother the right to decide what would happen with your children should both you and your spouse die.
Specific belongings: Some people will make a specific request for something to be given. This might be a painting, a family heirloom, your favourite guitar, or anything that you want. You should be able to clearly identify any of these items.
Unfortunately, your debt will not die with you. You cannot choose who will take your debts (such as passing them off to your Year 5 school teacher). They’ll be passed on to the next person in your family, either your spouse or children. Additionally, if anyone steps forward and claims that you are in debt to them (with proof), they will be entitled to a portion of your assets to assuage that debt.
If a debt is specifically tied to an asset, such as a mortgage on a house, the beneficiary who receives that asset would inherit the debt as well.
You can pick up Will Kits from your local newsagent. Make sure they are filled out correctly and a copy given to the Executor for safe keeping.
The Legal Jargon