You need to know some common misconceptions about wills
People have such different perceptions about what a will is and what needs to be in it. This short guide will explain some of the main misconceptions regarding wills.
WILL DRAFTED BY A SOLICITOR VERSUS A DIY WILL KIT
Many of our clients come to us to say that their affairs are very simple, so, shouldn’t a DIY Will Kit be enough. A DIY Will Kit may be OK provided it has been completed correctly and signed correctly.
In our experience, that rarely happens and unfortunately, in those cases, you do not know there is a problem until you die when it is too late to fix. Having a solicitor draft your Will gives you peace of mind to know that it has been prepared correctly.
WHEN I DIE MY SPOUSE GETS THE WHOLE OF MY ESTATE ANYWAY SO I DON’T NEED A WILL
This is the main misconception that we see. Whilst the spouse generally does inherit the whole of the estate, having a will drafted makes that process significantly easier and cheaper in the long run.
If you have a blended family and children from a previous relationship it is extremely important to seek legal advice and have a will in place as your spouse and your children have certain competing rights that need to be properly addressed. Having a poorly drafted will (or no will at all) may cause your estate to be contested (called a family provision claim). For more information on family provision claims see here.
THE IDEA OF A JOINT WILL
One of the most common misconceptions is that when a husband and wife are preparing a will, they prepare one document that jointly expresses their intentions. This is incorrect – each person needs their own will, setting out their own wishes. There is quite often overlap in what a husband and wife want, so the wills may “mirror” each other…. But that doesn’t have to be the case.
A WILL ONLY NEEDS TO BE DONE ONCE
Many people believe that once created, a will can be used indefinitely. While it is true that for some people, a well-drafted will could express their intentions indefinitely. For most people, a will needs updating as their circumstances change. For instance – the people they appoint as executors die or they are no longer friends with them, their kids grow up and can now be their executor, or certain assets which have been gifted in their will have been disposed of. People often do not consider their increases in personal wealth, which can result in imbalances in their existing wills.
WHEN I DIE, I JUST LEAVE EVERYTHING TO THE GUARDIANS OF THE KIDS
This is not necessarily the case. Your will generally sets up trusts for your children until they reach a specified age (usually 21 or 25 years). It is vitally important to have the right person to manage that trust in accordance with your wishes. The person managing that trust may also be the guardian of the children provided that person is extremely trustworthy and, financially savvy enough to manage your assets to maximise them for your children’s eventual inheritance.
BURIAL WISHES
Another major misapprehension is the belief that your wishes in relation to how you want your body to be disposed of is binding and unmovable. Your executor (and not your family or next of kin) is responsible for the disposal of your body. Many people leave explicitly detailed instructions on how their bodies should be disposed of which can often involve great expense. What they often don’t realise is that these are just wishes and are not binding on the executor of your estate. If your wishes are too complex or costly, your executor may ignore them entirely. This is a consideration before you decide to burden your executor with wishes that might be too difficult or costly to implement.
GIFTING TO CHARITIES
Gifting to charities can be a more arduous process than most realise. Often the organisation that people wish to leave money to may appear to be a charity, however, is actually an incorporated body. It is therefore important to give the precise details of the charity to the solicitor and to also make sure your solicitor checks the details against readily available information on the ASIC registry as well as the charity’s own website. Also, people often donate to a specific charity for a specific purpose. If the gift is not worded correctly in the will, then it will create a heavy legal burden on the executor to ensure that the funds are used for that specific purpose. Therefore, great care needs to be taken by your solicitor to ensure that the gift to the charity does not fail. These are just some of the misconceptions regarding wills. Therefore, it is important that you get the best advice during your estate planning. Please contact our friendly team at Eleven Legal so that we can guide you through the process.
