Making a Will shows you care. During our lives we can't always help others as much as we would like to. However your Will allows you to make appropriate provision for your family, to leave mementos for close friends, and to extend your life time support to the organisations important to you.
A gift in your Will can be profoundly beneficial to charities like us to help continue our good work well into the future. So if you're planning or updating your Will, please take time to consider Independence Australia. A gift left to our organisation is a practical way of showing your compassion and concern for the wellbeing of people with a disability and provides independence, dignity and quality of life for people with disabilities.
The following information helps you to understand how to make a will or bequest and also includes general information about Wills and estate issues.
Why make a will?
A Will is a forward plan of how you would like your assets to be distributed after your death. It's an important document. Without a Will your estate may not be shared in the way you wish. Many people put off making a Will because they prefer not to think about their death. Those who do make a Will discover that it can be a satisfying thing to do. You can direct who will look after your affairs and leave gifts that will be treasured by loved ones and those in need.
Your Will is a special and personal document through which you can extend your wishes and provide for the people and organisations you care about, well beyond your lifetime.
What if there is no Will?
When there is no Will or no valid Will, you are said to die "intestate". Your estate is then distributed according to State laws which are often not in line with your wishes and can tie up the estate for years and incur expensive legal costs.
If you die without leaving a Will, your spouse will receive the first $100,000, the personal chattels and one-third of the balance of your estate. Your children will receive the remaining two-thirds shared equally between them. Your spouse will also have the option of buying your interest in the matrimonial home at its value at the date of your death.
If you are not married and have no children, your estate will pass to your parents if alive and, if not then to your brothers and sisters, nieces and nephews, grandparents and, in some cases, cousins. If no relatives can be found after extensive searching the Government will inherit your estate.
Types of Bequests
There are several ways you can make a bequest. If you're naming more than one not-for-profit organisation, it's a good idea to specify proportions of the estate rather than specific amounts. The following may help you decide which way best suits your needs.
You may wish to share your estate among a number of people without identifying specific items of property or amounts of money. This type of bequest avoids problems caused by inflation, sale of, or changes to assets. It also ensures that should the value of your estate change, no beneficiary will be unfairly disadvantaged.
After leaving specific assets or amounts to family and close friends, you may choose to bequeath the residue (balance) of your estate to others, such as ParaQuad Victoria. It is possible to leave a percentage of the residue to more than one organisation.
You can specify property, works of art, insurance policies, stocks and shares, jewellery, money, in fact anything of value as your bequest. Property must be fully described so that it's easily recognised. If money is specified it's important to take inflation into account as its value will diminish over the years. This can adversely effect people and organisations named in your Will.
You can leave a property or perhaps the interest on a capital sum invested for the use of a loved one during their lifetime. Afterwards, the property or capital can pass to another beneficiary you nominate in your Will.
Drafting your Will
The following wording for your Will is provided as a guide for leaving a Bequest to an organisation.
Although you may write your own Will we strongly recommend that you consult a solicitor who will ensure your wishes are properly expressed using the correct legal phrases. It need not be expensive and it may be helpful to take some simple steps before you see your solicitor.
Think of your family, friends and the organisations you wish to provide for.
List all your assets and current liabilities.
Decide how to share your property amongst those you wish to benefit.
Choose who you would like to act as your Executor to carry out your wishes.
When you've done this, you're ready to see your solicitor and make or revise your Will.
Witnessing a Will
For a Will to be valid it must be signed by the Testator and two independent witnesses over 18 years of age. The witnesses should not be beneficiaries of the Will. Their signatures, occupation, addresses and the date should be at the end of the Will under the Testators signature.
Choosing an Executor
The responsibilities of an Executor can be difficult. They must take control of all your assets and administer your estate in accordance with the terms of your Will.
Because of the complexities involved you may prefer to appoint a professional Executor, ie. a solicitor or trustee company.
Certain work must be done by an Executor with the help of the estate solicitor and others:
Your Will should nominate Executors responsible for carrying out the terms of your Will. You should appoint two adults (members of your family, friends or professional advisers) or a trustee company as your executors. There is nothing to prevent a beneficiary from being an Executor.
An Executor is entitled to claim all costs and expenses incurred in administering the estate. He/she can apply to the Supreme Court for an executor's commission of up to 5% of the value of the estate if the administration is particularly complex and time consuming. A commission is rarely charged when the Executor is a family member. He/she cannot claim for time unless authorised by the Will.
Trustee companies usually charge on a special scale with various levels up to 5% of the capital value of the estate for administering the estate and up to 6% on all income received by the estate.
Other people claiming your estate
Anyone who was owed money by the deceased may pursue the claim against the estate.
In addition, the law gives certain people who have a close relationship to the deceased the right to claim a share or greater share in the estate. These are the deceased's widow, widower or children. Widow includes any former wife of the deceased who was at the time of death legally entitled to receive maintenance (but not de facto spouses), and children includes illegitimate children.
To succeed in such a claim the applicant must convince the court that the estate has not made adequate provisions for that person. All such applications must be started within six months after the date of the grant of probate or of the letters of administration.
A Power of Attorney is an important legal document, to safeguard yourself and your estate, if you become unable to handle your own affairs due to accident or illness. It is not part of a Will but it is wise to allow for unforseen eventualities when planning your estate.
Powers of Attorney
A Power of Attorney is a document authorising a person to act on behalf of another person.
If, for example, you were going overseas or required hospitalisation, signing a Power of Attorney would allow someone you trust to act on your behalf in your absence.
There are several types of Powers of Attorney including:
You can give a person power to act on your behalf in limited circumstances; eg. to sell your house for a specific figure, to operate your bank account or to act on your behalf for a limited time.
Alternatively, you can give a person control of all your business affairs by giving him/her the authority to do anything on your behalf.
If you wish to revoke a Power of Attorney, you should sign a document called a "Revocation of Power of Attorney". If possible, when you revoke it you should ask the person to whom you gave the power to give you back the original and certified copies of the document creating the power and provide that person with a copy of the revocation.
In certain circumstances if anyone with a special interest in your affairs believes that your agent is not acting in your best interests, an application can be made to the Guardianship and Administration Board for a review of the situation. (Please note only relates to a certain class of persons).
All Power of Attorney documents should include the specimen signature of the Attorney.
The authority under a General Power of Attorney ceases immediately when you become mentally or physically incapable of managing your own affairs (for example, if you become bankrupt or very ill).
However, under an Enduring Power of Attorney, the authority to act on your behalf will not end if you become mentally or physically incapable of managing your own affairs. An enduring Power of Attorney must be witnessed by two adults.
An Enduring Power of Attorney (Medical Treatment) gives the person you appoint the authority to make decisions about medical treatment on your behalf if you become incompetent through ageing, physical or mental illness or injury. An Enduring Power of Attorney (Medical Treatment) must be made on a form prescribed by legislation and witnessed by two adult witnesses, one of whom must be a person authorised to take statutory declarations (such as a solicitor). The authority only becomes effective if you become legally incompetent ie. unable to make decisions on your own behalf. This document only gives the person to whom you have given the authority power to refuse medical treatment generally or specific medical treatment if he/she believes it would cause you undue distress, or if he/she believes you would have thought the treatment was unwarranted. Such persons cannot authorise administration of particular medical treatment.
Reviewing your Will
In these days of change, you should review your Will at least every five years. A Will should reflect your current domestic and financial situations. If these change, you should revise your Will.
If you marry, a Will made prior to the marriage is no longer effective. If you separate, a Will made prior to the separation will not be affected. If you divorce, any gifts to your divorced spouse or their appointment as Executor will automatically be revoked. If these consequences are not in accordance with your wishes, you must make a new Will. Your choice of an Executor and a guardian should also be reviewed from time to time as circumstances change.
Keeping your Will safe
Seemingly obvious advice, but many people neglect to follow it, or if they do, no one else knows the whereabouts of the Will. You may choose to leave it with your solicitor, trustee company, bank or Executor. If you want to keep a copy at home, leave the original with one of the above.
Consulting a solicitor
When you consult a solicitor about making a Will, the solicitor will not only ensure that the Will is properly drawn up and correctly signed and witnessed, but will also discuss such matters as:
Glossary of Terms
The legal profession has been known to confuse many people with the jargon that they use when discussing such matters as Wills and bequests. To assist with your understanding we provide the following brief explanation of some of the more commonly used terms:
A person appointed by law to settle the affairs of someone who dies without a Will
A person or organisation receiving a gift from a Will
A gift left in a Will to a specific person or organisation
To leave a Bequest in a Will
A supplement to a Will containing an addition or change to the Will
Dissolution of marriage. May result in a need to change a Will
The property and possessions of a deceased person
A person named in a Will to carry out the provisions of the Will
Property passed on by a deceased person
Dying without leaving a Will. 'Partial Intestate' - to die with only part of an estate covered by a Will
A Gift of property left in a Will
A promised gift
The official proving of a Will as authentic or valid
The portion of the estate left over after all expenses and Bequests have been settled. Often this is left to a charity
A person who has made and left a valid Will
Assets held and controlled for the benefit of another (the beneficiary)
A person who holds and controls property for the benefit of another
Acknowledgment: Law Institute of Victoria
- Betty (long term donor)
To find out more about bequests to Independence Australia, please call our fundraising team on 1300 704 456 or email [email protected].
Independence Australia wishes to thank the Law Institute of Victoria for its invaluable assistance in preparing this material.
|This information gives a broad outline of the law. It is not intended to and does not encompass all aspects of the law on the subject matter. It is only a guide to the present law. No responsibility attaches to Independence Australia for any errors contained in this information. You should obtain legal advice before relying on anything mentioned here.