The Importance of a Valid Will
Printer Friendly Version
Author: Storey & Gough Lawyers
Publish Date: August 9, 2007
When somebody dies in the family, it is a time of a great deal of emotion and loss. There can be huge amount of changed financial circumstances for those that are left behind and it is very important that the will is valid and that a competent executor has been nominated to help make the right decisions about your property to ensure that your family and beneficiaries are looked after on your death.
A well written, valid will ensures that your estate is simplified in its administration and safeguards your assets and protects your loved ones when they are at their most vulnerable.
Frequently Asked Questions
1. What are the requirements for a will?
2. Who needs a will?
3. Who should prepare my will?
4. Is it possible to change my will?
5. Is joint tenancy as good as a will?
6. Does it really matter if I don’t have a will?
7. Is it possible to appoint a guardian for my children in my will?
8. What is a guardian?
9. What is an executor?
10. What are the obligations of the executor?
11. How can a person contest a will?
12. Must the will be formally read to the family?
13. Why must the will go to the Court?
14. What is probate?
15. What is a beneficiary?
16. When is the right time for me to make a will?
17. What is intestate?
1. What are the requirements for a will?
The requirements for a valid will depends from state to state. Commonly, the will must be in writing, signed by the person who has made the will (“the testator”) and must be witnessed usually by two persons who must witness it at the same time.
The testator must have attained the age of majority and be of “sound mind” at the time the will is signed. A married minor is usually able to sign a will. The witnesses to a will must not be beneficiaries or spouses of a beneficiary of the will and must also be competent persons (and also of sound mind).
2. Who needs a will?
Everybody will die at some time and generally speaking, possesses property, even if the property is not worth a great deal in monetary terms it is often worth something in a sentimental way. We would suggest that almost everybody under state law needs a will so that it is clear as to what happens to the property in the estate of the person who dies. If someone dies without a will, there are state laws which attempt to distribute the property in a fair way amongst members of the family. If however, someone leaves behind a dear friend, there is no provision in the state law for that person to inherit under the act, unless there is a valid will.
3. Who should prepare my will?
Only a Solicitor can legally draft a will for a person unless the person prepares their own will. We would most certainly not recommend that a person prepares their own will. The Courts are full of cases whereby wills have been incomplete or not properly prepared in some way. An invalid will is totally worthless. We cannot emphasise enough for you to have a valid will so that your wishes may be carried out and for the sake of a relatively small amount of cost now, it would offer peace of mind for your loved ones to ensure that your wishes are carried out.
Will kits are available in an absolute emergency, however, again we would not recommend these as they are not state specific and again the testator has not received the benefit of legal advice and has not necessarily therefore had his/her wishes properly conveyed in the document. If the state law has not been followed, even in the will kit, it will be held to be an invalid will. Many cases in the courts deal with the inappropriately completed will kit.
4. Is it possible to change my will?
Yes, a testator may change the will if that person is still of sound mind. A new will may be prepared or a short document called a codicil can be created which effectively amends the old will.
A state law can also change a will for example, a divorce usually terminates the ex spouses rights under a will.
5. Is joint tenancy as good as a will?
Joint tenancy operates so that the surviving partner receives the balance of the property. It is a method of owning property with another person. The property is not part of the deceased’s estate and it is simply transferred upon death to the survivor.
A joint tenancy is however, not the same as a will. Each individual joint owned asset has to be reviewed at the time of death and be accounted for in the management of the estate.
6. Does it really matter if I don’t have a will?
Each estate has laws that apply to people who die without a will. This is commonly referred to as dying intestate.
There are specific formulas as to how the property is divided. Generally speaking, the spouse and children of the deceased will take the property. If there is no spouse and no children, then the testators parents will take the property, siblings, grandparents and children of the grandparents and if no relations are found, then the property will eventually after the long chain of relatives are reviewed, go to the state.
7. Is it possible to appoint a guardian for my children in my will?
Yes, it is possible to give your desire as to who you would like to have appointed as a guardian for your children in the will. It is a desire only and is by no means binding. Any Court however, in a dispute would consider your wishes and of course, this is the only way in which you are able to make your wishes known. Overall however, the Court would look at what is in the best interests of the children.
8. What is a guardian?
A guardian is appointed to take care of children who are minors in the event of both parents dying.
9. What is an executor?
The executor is the person responsible to administer the assets upon the death. The executor should be somebody who is responsible and available to be able to sign documents. Quite often, the executor is one of the major beneficiaries under the will.
10. What are the obligations of the executor?
The executor has a number of tasks to perform which include:-
a) collecting all of the deceased’s assets;
b) paying any claims and ensuring that any disputes are properly resolved;
c) giving proper notices to the proper parties;
d) receiving any claims that are made against the estate;
e) ensuring that the assets are distributed according to the will (or the state law);
f) carrying out any necessary actions (usually in consultation with the solicitor acting on the estate) like selling property, shares etc.
11. How can a person contest a will?
If a testator has not named somebody as a beneficiary in their will or has left something which that person considers to be inadequate, then they may be eligible to contest the will.
Another way in which the will may be contested is on the basis that the will was not validly made. Examples of this are if the will was:-
not properly signed by the testator;
was not properly witnessed;
there was incapacity on the part of the testator;
there may have been undue influence or fraud.
These are common grounds for attempting to contest a will.
12. Must the will be formally read to the family?
In many movies one sees the old Solicitor peering over his glasses with the eager family anticipating the millions to be gained sitting around the table. This is a dramatic film scene created for the cinemas and has little to do with reality. In fact, usually a letter arrives in the mail, or the Solicitor phones indicating to the beneficiary the share of the estate the testator has left.
13. Why must the will go to the Court?
It is important that the deceased’s affairs be legally finalised. It is the Court’s role to grant probate. When it comes to the selling of real estate, there needs to be some legal authority which gives the executor the right to be able to hold out to the world that he/she has the ability to sell the property on behalf of the deceased. The same situation arises with the sale of shares and the payment of taxes.
There are provisions for informal probate to be granted whereby it is not necessary for any interaction with the Court if there are limited assets in the estate whereby banks do not require the expense and formality of a Court proved probate, but rather the death certificate and general proof of death in an endeavour to save costs.
14. What is probate?
Probate is an order from the Supreme Court which certifies that the will is valid and was the proper last will to have been made by the testator. The probate then permits the executor to sell, collect and distribute all of the assets of the estate and give them to the beneficiaries.
15. What is a beneficiary?
A beneficiary is a person who receives money or property or benefits in some way by a gift under the terms of the will.
16. When is the right time for me to make a will?
A person should make a will immediately because no one really can foretell the future. It is our strong recommendation that everybody review their financial and property affairs and part of that process should be to review their wills. Life events change such as becoming married, having children, divorcing, inheriting substantial monies or winning lotto (if only). It is these types of circumstances that should be reviewed regularly (at least every 5 years) to ensure that a will is catered for and your affairs are in order. Storey & Gough can assist you in helping you to sort out your affairs.
17. What is intestate?
This is the term used when a person dies without leaving a will. The State law is then followed as to how the property is to be divided according to a specific (yet fair) formula.
At Storey & Gough we have been preparing wills for hundreds of people over the last 50 years and acted on numerous estates and dealt with many contested wills. It is important that you:-
Protect your family and loved ones by having a valid will;
Ensure your financial and property matters are organised and reviewed on a regular basis – we can help you organise, plan and recommend any appropriate experts to assist you;
Have valid powers of attorney and enduring powers of attorney;
Make sure your will is regularly reviewed as your circumstances in life change.
Storey & Gough can offer you professional advice in relation to estate planning and living your life in a more organised and financially peaceful way. Just one of those matters can be the completion of your will and to save time and costs, we have prepared a Will Planning Kit which we would recommend you complete online and return to us either by email or fax or alternatively by post so that we may have a meaningful conference without us wasting time spelling the names of beneficiaries!!
Contact Marilyn Power of our office to make arrangements for a conference to be held and your important property and estate planning matters to be discussed.