Wednesday, November 22, 2023

What is a Will?

A Will is a legal document that determines who your assets such as your house, land, bank accounts, investments and other property, goes to upon your death. Keep reading below or click here for more information.

Who should have a Will?

Every person over the age of 18 should have a Will. It is a common misconception that a Will should only be created by the elderly or the terminally ill. However, it is always wise to organise your affairs in the unfortunate event of unexpected death or permanent disability.

Why should I make a Will?

The creation of a Will ensures you have total control over who receives your assets when you die. You will also be able to specify how each asset is to be distributed.

If you pass without a Will, the Court will decide how your estate will be distributed. In accordance with the Administration Act your assets will be distributed to your spouse, partner, children, parents, siblings, nieces and nephews accordingly, whether or not you want those people to benefit.

Having a Will means that minimal stress will be placed on those closest to you and decreases the chance of disputes arising.

If you are part of a complex family including step children, blended families, persons suffering from disability or other issues it is wise to obtain legal advice on the best way to formulate your Will. Disputes regarding asset distribution can turn into long and expensive legal battles.

Essentially, having a legally valid Will is for the benefit of your loved ones.

How do I ensure my Will is valid?

A Will is only considered legally binding if it is deemed valid.

In accordance with the Wills Act, a Will is valid if:

  • The person making the Will is over 18 years of age;

  • The Will is in writing;

  • It is signed by the person making the Will; and

  • Two independent witnesses are present when the Will is signed.

It is essential to obtain legal advice to ensure that your Will is legally binding.

Why should I have a solicitor draft or update my Will?

The preparation of a Will involves consideration of several important issues which you may require our assistance with. For example:

  • How will your assets be divided?
  • Who do you need to provide for?
  • Have you considered your funeral arrangements?
  • Who will be the executor of your Will?

A Will is an extremely important legal document. A poorly written Will leaves it open to dispute. Not only are there numerous rules to comply with regarding the proper signing and witnessing of the Will, but proper legal language is vital in ensuring your assets are distributed to your liking.  

A solicitor can also assist you in updating your Will to reflect your current circumstances. This is highly important especially if your assets have changed significantly or if you have separated, divorced, remarried, or entered into a de facto relationship since your last Will was drafted. In Western Australia, marriage and divorce revokes a Will (if the divorce occurred on or after 9 February 2009).

Appointing a Power of Attorney

In the event that you suffer from an accident, become gravely ill or are travelling outside the country, it is wise to appoint a person who you trust to take care of your affairs in your best interest. An Enduring Power of Attorney (EPA) is a legal agreement that allows you to appoint a trusted person of your choice to manage your financial and property dealings in the event that you require it.

Appointing a Power of Guardianship

Additionally an Enduring Power of Guardianship (EPG) is a legal document which allows you to appoint a trusted person of your choice to take care of your personal, lifestyle and treatment decision in the event that you become unable to make such decisions for yourself. This person (known as your enduring guardian) can make authorised decisions concerning your living situation, the support services you have access to and the treatment you are undergoing. An enduring guardian does not have the authority to make decisions in relation to your property or finance.

Execution of these documents:

These documents can only be executed by a person over the age of 18 and who has full legal capacity.This means that the person must have full knowledge regarding the nature and outcome of the documents they are bringing into effect   as well as of their estate.

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