The rise of DIY wills and why you shouldn’t go there

Without a legal background, understanding the intricacies of wills and estates can be both daunting and challenging.

 

However, wills will play significant role in your life, now and into the future, and ensuring you have a clear vision of how they should take shape is crucial.

 

Understanding them properly and being clear on how you would like your instructions carried out will go a long way in minimising any legal disputes that may arise down the track.

 

Navigating the will creation and estate planning process can be complex and without proper legal guidance, can be fraught with danger. Despite this, people still go down the more ‘cost effective’ path by not including qualified legal professionals in the process.

 

According to Bennett & Philp lawyer Geoff Armstrong, the growing market for ‘Do It Yourself’ wills certainly increases the likelihood of someone creating a will, though it often results in complications, drawn out time periods and costly court proceedings.

 

“It is common for us to see homemade wills that don’t meet legal requirements,” he said.

 

“The difference is if you have a professionally drawn will and you have to apply for a probate in the court, there’s rarely a problem. If you have a homemade will that isn’t correct, you may have to go to a judge to get it accepted as a valid will and it would cost a lot of money, in many cases between $30,000 and $50,000.”

 

“It’s best to review your will every two to three years too, especially if there has been a big life change for example a marriage, divorce, having children or grandchildren, something you’ve gifted no longer exists or a beneficiary dying or losing capacity – these changes can significantly affect a will and an appropriate amendment is required.”

 

Mr Armstrong added there are many elements to consider when creating a will and believes anyone over the age of 18 should have one.

 

“If you think of the average person, they may have a car, personal belongings, a bank account, university debts and so on – all of those things have to be sorted out and while they may not be worth much, their belongings should be taken care of no matter the value,” he said.

 

Mr Armstrong shares the top questions he often asks his clients who are eager to go down the correct path.

 

Who will your executors and beneficiaries be?

Choosing the key people who will play a huge part in your will can be a difficult decision to make. While executors have the responsibility of sorting out the will, whether you have any funeral wishes or gifts you’d like to make if any, beneficiaries are the people who inherit what was yours.  It’s normally the other spouse, children or grandchildren, but it doesn’t always have to be that way. You could have a charity or a trust, even friends or other relations – at the end of the day, it is up to you. But whoever you do decide, it’s important to ask them first and include their full names with as much detail as you can. Some people choose a professional executor such as a lawyer or accountant because they are independent from the family and managing at arms-length.

 

If you have children under the age of 18, who will be appointed as their guardian?

It’s surprising how many people do not ask a guardian if they would be comfortable with carrying out the responsibility that comes with it. This includes being in control of their living situation, medical needs and care and ultimately stepping in as the parental figure if you are no longer there. Before appointing someone as the guardian of your child or children, ask them beforehand to ensure they on board.

 

Do you have any funeral wishes or special gifts to give?

An example of a funeral wish is if you want your cremated ashes to be scattered somewhere in particular. A wish is not legally binding but can be put in your will in the hope that it will be carried through. I previously had a case in England where a woman wished for her Jack Russel to be euthanised immediately after she passed away, so they could meet up on the ‘other side’. When she did pass her dog was with the neighbour, who sent the dog away because it was perfectly healthy and did not need to be put down. Upon further discussion, it was decided not to focus our efforts in locating the canine as it would cost thousands of pounds in the process at the expense of the ultimate beneficiary.

 

When it comes to gifts, items or amounts of money you would like to give to anyone, you must include a well-detailed description so there is no confusion. Particularly with items of jewellery, you need as much information as possible to avoid confusion and perhaps people fighting it out when you’re no longer there to clarify.

 

Who will be looking after your pets, if you have any?

Earlier this year when French fashion designer and Chanel founder Karl Lagerfeld passed away,  media reports disclosed that his cat was set to inherit a significant amount of his fortune. I’m sorry to say, but that’s not possible. You cannot physically leave items to pets and you can’t leave money to pets. Commonly, you leave your pets to someone else with a gift of money to cover the cost of looking after the pet. As such, you can’t leave anything directly to the pets and it’s quite often that people will leave their pets to the RSPCA to be rehomed with a donation to the RSPCA. Whatever future you want for your pet, be sure to include it in your will. Because it is not legally binding, people do forget about their pets but in an emergency, the executor can take care of them.

 

Deciding what to put in your will and where to start can be daunting so these questions should help minimise the common mistakes people make when arranging their assets and help put their mind at ease.

 

The Public Trustee in your state or territory is able to assist you with the preparation of a professional and valid will, often free of charge.

 

Because Public Trustees are established under separate state/territory legislation, their activities may vary, however they commonly provide the following professional services:

  • Wills - Preparation of wills by professional qualified staff
  • Attorney Services - Preparation of acting as attorney services
  • Deceased Estate Administration - either as executor or administrator
  • Trusts - preparation of trusts deeds and acting as trustee in a range of trusts
  • Financial services - including taxation, financial planning and investment services
  • Financial Management - some Public Trustees provide financial management services to protect and support vulnerable people in our communities.
  • Sale of assets including sale by auction of real estate, vehicles as well as goods and chattels

 

To find a Public Trustees in your state or territory see https://www.publictrusteesaustralia.com/https://www.publictrusteesaustralia.com/

 

24 May 2019.