Your will sets out your instructions on how you want your property, known as your estate, shared out when you die and how you want your dependants, such as your partner or children, to be looked after.
Having a valid will in place when you die can reduce the amount of financial and emotional stress on your family, and can reduce the possibility of a dispute arising over your estate.
If you are over 18 years of age and of sound mind, then you are able to make a will. There are a few instances where you can make a will if you are under the age of 18, including if you are or have been married or in a civil or de facto relationship, in the military, or approved to make a will by the Family Court.
If you have a will in place, it is important to make sure your will is valid. There are a number of factors that can make a will, or part of it, invalid. These factors include entering into a marriage or civil union, the will not being signed or witnessed properly, undue influence to distribute your estate in a particular manner, or if you were underage or not of sound mind when the will was made. If parts of your will are deemed invalid as they are unclear or uncertain, the Court will use external evidence of your intention to determine its meaning. It is also important to correctly identify what property will be included in your estate. Should you make a distribution or give a life interest in property which does not make up part of your estate, then that distribution or interest will fail. A common error when identifying what property will make up an estate concerns trust property. Any property once personally owned and transferred to a trust, or trust property to which you are entitled as a beneficiary, does not make up part of your estate and cannot be distributed through your will. Your will deals with the distribution of your “personal” property and property held in a trust does not constitute this. When property is transferred into a trust, the trustees of that trust become the legal owners of that property. Additionally, if you are a beneficiary of a trust, the trust property will not form part of your personal estate as the trust property has not been transferred or distributed to you. Another common misunderstanding surrounds the distribution and/or life interest in land that is owned by more than one person. When making a distribution or giving a life interest in land you own with someone else, it is important the land ownership is held as tenants in common. If the ownership is held as joint tenants, then your share of the land is automatically transferred to the surviving owner, rather than into your estate. If this were to happen, then the distribution or life interest would fail.
If you die without a will, it is known as dying intestate. Should you die intestate then the Administration Act 1969 (the “Act”) will determine how your estate will be distributed. The Act will apply and your estate will be distributed to your surviving partner, your children, and/or your parents in set amounts. Failing that, your estate will go to the Crown. This distribution may not reflect your wishes or the wishes of your friends and family. Legal expenses and time delays are usually larger where there is no will in place.
Your will could be one of the most important documents you sign. If you have any questions about the validity of your will or if you would like to put a will in place, then contact us at Arnet Law.