Why Everyone Should Have a Valid Will
By Ron Cohen
9 December 2019
People sometimes say that making a Will is more painful than going to a dentist. They may think that they don’t have enough assets to bother or make excuses and put it aside “until they get old”.
Truth be told, not having a valid Will can be far more painful to your family than sitting in a dentist’s chair having a root canal operation! This blog lists out the top ten benefits of having a legal Will regardless of your financial position.
1. Decide how your Estate will be distributed
A Will is a legally binding document that allows you to determine how you would like your estate to be handled upon your death.
If you pass away without a Will, there is no guarantee that your intended desires will be carried out.
You can use your Will to create trusts for your children or other beneficiaries. There may be tax benefits in using testamentary trusts.
2. Decide who will wind up the Affairs of your Estate (known as the Executor)
An executor is the deceased’s legal personal representative who will administer the affairs of the deceased and distribute the estate in accordance with the provisions of the Will.
The executor will ensure that your affairs are in order, including paying off bills, cancelling credit cards, and notifying banks and other business establishments.
Because of the executor’s important role, it is important to appoint someone who is trustworthy, honest and organised.
Note: the executor does not need to be a family member. They can be a professional such as a lawyer or accountant.
If a will-maker fails to appoint an executor, usually the court needs to appoint someone to administer the estate. A person appointed by the court is called an administrator (of a Will).
Often this is the beneficiary with the largest portion of the estate.
3. Avoid a lengthy Probate process
With or without a Will, all estates go through the probate process.
Having a valid Will speeds up the process because it avoids long, unnecessary and sometimes costly delays.
If you pass away without a Will, the law will decide who is appointed as your executor and how to divide your estate without knowing your individual wishes.
4. Appoint a Guardian or Guardians of Minor Children (<18 years old)
Without a valid Will, the court will take it upon itself to choose among family members or a state-appointed guardian.
It is important to avoid that someone you would not want to raise your child/children is not selected by the court.
5. Disinherit individuals who would otherwise stand to inherit
Contrary to common belief, you may disinherit, or in other terms, exclude, a person from you Will who would otherwise inherit your estate if you died without a Will.
6. Making Gifts and Donations
Making gifts and donations allows your legacy to live on and reflects your personal values and interests.
7. Avoid greater legal challenges and minimise family disputes
A Will provides for a clear division of assets, which can go a long way toward preventing familial disagreements.
Having a Will may reduce conflict and speculation over what you “would have” wanted.
As divorce becomes more complex and blended families more common, dividing assets has become more challenging.
8. You can alter your Will as life circumstances change
You can alter/modify your Will at any stage during your life.
Following life events such as deaths, births, marriages and divorce, your Will can be changed to reflect new circumstances.
9. Because tomorrow is not guaranteed
In many cases, the realisation that Wills are necessary arises too late.
Having a valid Will minimises additional stress on families during an already emotional time and eases the grieving process.
To make a valid Will you must also have testamentary capacity. This means that you are not suffering from a disorder and be of sound mind.
10. If you die without a Will
Each state will have its own legislation dealing with intestacy including appointment of administrator and distribution of assets.
The Administration and Probate Act 1958 (Vic) establishes a statutory scheme for the distribution of property on intestacy in Victoria (refer attached schedule).