Introduction
Creating a Will is an important legal process that allows you to express your wishes regarding the distribution of your assets after your death. In New South Wales (NSW), there are several considerations and legal requirements to keep in mind when making a will:
1. Capacity:
You must not be affected by a disease of the mind which renders you incapable of understanding the nature and extent of your estate, the effect of the provisions of the will and what it means for your beneficiaries and those who might otherwise have been the object of your estate. You must make the Will freely and of your own volition.
2. Age:
In NSW, the legal age for making a Will is 18 years old. However, exceptions may apply for individuals who are not yet 18 if they are married, in a registered relationship, or have been granted permission by the Supreme Court.
3. Executor:
Your executor is the person appointed as your personal legal representative to implement your wishes in accordance with your Will. Choose an executor who is trustworthy, organised, and financially responsive. You can appoint more than one executor.
4. Beneficiaries:
Clearly identify those who could potentially have a moral claim on your estate, those you wish to benefit under your estate and the reasons why you wish to limit provision to one or more. There are strategies that can be adopted to mitigate claims against your estate and/or to satisfy all of the moral claims on you.
You should also give consideration to the circumstances of your beneficiaries and how you might best provide for them. This may include strategies such as special disability trusts for children with a significant disability, protective trusts for vulnerable beneficiaries, and discretionary testamentary trusts for income splitting and tax minimisation.
5. Specific Bequests:
If you have specific gifts or bequests you want to make, clearly outline these in your Will. This could include sentimental items, legacies, or gifts to charities.
6. Superannuation and Life Insurance:
Whilst superannuation and life insurance are governed by their own trust documents and are not strictly estate property, they are financial resources that should be given careful consideration in the estate plan. These financial resources may be used to provide for beneficiaries who are otherwise not provided for under your Will – such as children from a previous relationship of a second or subsequent spouse.
If you want your superannuation to be dealt with via your estate, you can nominate your personal legal representative as your beneficiary and make provision under your Will. The appointment of your beneficiary is significant and you should consider this as part of your estate plan.
7. Guardianship of Minor Children:
If you have minor children, consider the appointment of a guardian to take care of them in the event that neither parent survives. You may also consider creating a fund from which to pay the guardians a periodic payment for your children’s costs of living.
8. Review and Update:
Regularly review and update your Will, especially when significant life events occur, such as marriage, divorce, the birth of children, or changes in financial circumstances.
9. Legal Advice:
Estate planning is a complicated matter. Careful consideration should be given to the nature of your assets and financial interests, superannuation and life insurance and the web of personal relationships. However, there are strategies. Seeking legal advice is highly recommended.
Keep in mind that the laws surrounding Wills can be complex, and they may change. Seeking professional legal advice ensures that your Will is legally valid, accurately reflects your intentions and deals with the complexities of your estate and the relationships with those who may have a moral claim for provision.
Consult with us today to ensure your final wishes are safeguarded. Phone us on (02) 4050 0330 or enquire online.
