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What to consider when drafting a Will

30 Aug 2022

1 min read

30 Aug 2022

It is very important to have a Will correctly and professionally drafted so you can be assured your possessions go to the people you want them to go to on your death. The distribution of your estate can become tricky depending on your marital status, how many children you have and if they are from different partners. Having a Will drafted by a lawyer makes things much easier for your executor and beneficiaries to handle. 

What is a Will? 

A will is one of the most important legal documents for you to have written up. It ensures that your possessions are distributed to the people you choose after your death. Don’t forget these are assets that you have spent your lifetime working hard for. It allows you to communicate your wishes clearly and precisely, therefore avoiding any disputes over your estate.  

A will also covers a few other important details; such as what your funeral wishes are, who you would like to name as the executor who will look after your children if they are minors. 

What makes a Will valid?

For a will to be valid, it must be made in writing. Your will must be signed by you and it must be signed by two witnesses and dated at the time of signing. The witnesses must also sign the will in your presence to attest that they saw you sign your will.  

Having witnesses also signing your will is a check against any fraudulent activity such as forgery. The witnesses should not be anyone who is a beneficiary of the will.  

By having your Will drafted by a Will lawyer, you can be confident that once it is signed and executed it is done so in accordance with the law. Only a Will that is executed in accordance with the law will be accepted by the Court on your death. 

What happens if you die without a Will? 

Dying without a will – also known as dying intestate – means that your estate shall be distributed in accordance with legislation. In essence this means that the Parliament, and not you or your family, decides on how your estate is to be distributed and to whom.  

Some people may have trouble deciding on who to give their estate to if they have no close relatives, If this is a consideration for you, you can leave your estate to charities or other organisations to benefit from. 

Role of the executor 

An executor’s role is to secure your assets and distribute them to the beneficiaries named in your Will.It is advisable that to always have an alternate executor who is to act if your first nominated executor is unable or unwilling to act.  

The first responsibility  of an executor is to locate your will, then applying for a Grant of Probate if necessary. A Grant of Probate is a Court Order issued by the Supreme Court of Victoria that gives the executors  the authority to call in your assets and distribute them to the beneficiaries stated in your will. An executor will also settle any debts you may still have at the time of your death.   

Can I change my Will?

Yes. You can change your will whenever you want. Good times to update your will include a change in family circumstances, such as the introduction of more family members such as new partners or children, as well as things like divorce. It is important that anytime you are considering making any changes to your Will that you seek advice from a lawyer. Amendments made to a Will which are not in accordance with the law can result in a Will being invalidated.  

What if I am not including someone in my Will? 

Not including a family member or dependent in your will may lead to a dispute after your death. There are certain legal rights that some family members, or dependants, are entitled to. It is quite common for disputes over wills to arise. The costs associated with the dispute are mostly be taken out of the estate.  

You should get advice if you are intending not to include a dependent or think there may be a claim on your estate after you die. Estate claims can be financially and emotionally costly for your loved ones left behind if these issues are not carefully considered beforehand. 

Legal assistance in drafting your Will 

If you have a lot of beneficiaries, a complicated estate or just want peace of mind that your will clearly states your intentions, hiring a will solicitor is probably a good idea.

Will disputes are common and can fracture the relationship of your children or other beneficiaries if how you are dividing your assets is not properly thought out.

PCL Lawyers’ will solicitors can help you make a carefully drafted will and give you personalised advice of what you should include. They can also assist in your executors getting a Grant of Probate if necessary.  

Contact one of our Melbourne Will solicitors here, or call PCL Lawyers on 1300 907 335.    

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