Should I use a Will Kit? – The Risks involved with drafting your own Will
Many people never see a lawyer in relation to their estate planning. Rather they use what are commonly called “Will kits” which can either be purchased online or at a local post office, to create a rudimentary will which divides their assets and acts as their last will and testament. This guide will show you the many issues with this will kit and why legal advice is crucial in the estate planning process.
A COMPLICATED DOCUMENT?
Wills are complicated documents, and there are thousands of cases where people have ended up being dragged through Court because the will was not drafted properly.
A good will kit comes with a brochure or booklet which explains how to complete and sign the will. The process of reading and understanding the instructions requires just as much time and effort than actually just meeting with a lawyer in the first place where the lawyer can explain the concepts in person. Meeting with a lawyer and having your questions answered immediately is far easier and is much less a hassle than trying to research the issues and concepts for yourself.
LACK OF CONTROL AND AGE OF INHERITANCE
As Will kits are designed to be simple, they also do not take into account and do not allow more complicated will structures that allow the division of assets to be controlled more effectively after you die. For instance, a testamentary discretionary trust cannot be drafted using a will kit, as the setting up of multiple trusts to dispose of specific or groups of assets is complex and must be tailored to suit. Therefore, a will kit is limited to extremely basic testamentary intentions and can only really benefit those individuals who have a simple estate and who want a basic distribution of their assets.
The most common thing we see in wills not drafted by lawyers is that children receive their entitlement to the estate when they are 18 years of age. In our experience, when given the choice people tend to make this age 21 to 25 as their children will be more mature by this stage in life and are far better at using the money for its intended benefits.
LACK OF GUARDIANS
We also see that people who complete will kits also often do not appoint legal guardians for their minor children. The appointing of guardians ensures that your children are immediately taken care of and that the person who you would have trusted as their guardian, is able to act in that capacity.
If guardians are not appointed by your will, if there is any dispute at all between family members, this can spill into litigation as to who will obtain custody of your children and will cause considerable emotional damage to both your children and the family members involved in the dispute. Having a will prepared by a lawyer will ensure that your children are looked after by the people you wish after you are gone.
TAX CONSIDERATION
Good estate planning will often consider the best structure for a will and the tax implications which are caused by distributing assets from a deceased estate. For example, having a testamentary discretionary trust within your will allows certain tax benefits related to paying income to minors. This is not achievable in a will drafted from a will kit, as the document does not have the necessary clauses to deal with these types of scenarios. With asset-rich estates, it is vital to seek professional help to ensure that all tax benefits are obtainable and utilised in your estate.
ASSETS AND INTERNATIONAL ASSETS
Many of our clients come to us saying “our needs are simple, we don’t have much”. After a few questions about their life, we find out they might have worked overseas and had superannuation there, or still have a lingering bank account. People often forget that they also need to plan what happens to these assets when they die, and a good lawyer will go through these when considering estate planning.
To ensure that all your assets are able to be dealt with by your will, the document might have to be drafted as an international will, or you may even need multiple wills across jurisdictions. This is not something that can be dealt with in a will kit, and having a lawyer draft the document ensures that your assets are dealt with correctly.
POWER OF ATTORNEYS AND ENDURING GUARDIANS
Another factor which is overlooked in the use of the will kit are powers of attorney and enduring guardians. These are documents, which are independent of a will and operate while you are still alive. A Power of Attorney appoints an “attorney” to act in your stead in financial matters, whereas an Enduring Guardian appoints a “guardian” to make health and medical decisions on your behalf.
These documents are an important part of estate planning, as they are designed to ensure that you are looked after both financially and medically in the event you are alive but lose the capacity to make these decisions for yourself.
NO UPDATING OF WILL WHEN CIRCUMSTANCES CHANGE
We often find that people come to us to update their wills, and they bring with them a will kit that is over 20 years old. People sit and forget to change them, whereas they should be reviewed as circumstances change or assets change.
Wills must be set up in such a manner to deal with multiple scenarios and eventualities and will kits lack sufficient detail to address these issues.
WE CAN HELP
We do not recommend a free will kit as they often lead to costly mistakes. Here at Eleven Legal, we have extensive experience in drafting wills and estate planning to ensure that you do not fall into any of the traps that can be caused by using a will kit. Contact our team at Eleven Legal and we will be happy to guide you through the process and make sure that the estate of your loved one, is wrapped up and finalised as you truly intended.
