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Benefits of a Will

This article discusses the benefits of having a will, what can and can’t be included in a will and when to consider changing your will.

What is a Will?

In simple terms, a will is a document that provides for the distribution of a person’s assets following that person’s death. A will also outlines who is responsible for administering your will.  A will is drafted to outline the specific intentions of the will maker and must be signed and witnessed.

A will assigns executors and beneficiaries. An executor is best described as a person determined by a will-maker to be responsible for the administration of their will. As such, an executor is responsible for the management and distribution of a will-maker’s property after they die.  For more information about the responsibilities and duties of an executor, see our dedicated article on the role of executors.

A beneficiary is a person who is entitled to certain benefits from a will. For example, a will may provide that one of its beneficiaries is entitled to the deceased’s house or car. A will can provide for multiple beneficiaries and divide assets between them in accordance with the will maker’s intentions.

A will can be tailored to reflect your specific circumstances and exact instructions.

Benefits of a Will

Dying without a will, also known as dying interstate, can lead to financial complexities and legal uncertainties. The benefits of having a will extend beyond mere asset distribution and have significant implications for individuals and their loved ones. These benefits include: 

Control of Asset Distribution

  • In the absence of a will, intestacy laws dictate the distribution of assets.  This may result in unintended outcomes. The benefit of having a will means that individuals can specify how their assets should be distributed, ensuring that their wishes are honoured.
  • Among other things, under Chapter 4 of the Succession Act 2006 (NSW), spouses automatically inherit the estates of their partners in the absence of a will. However, children may be excluded from inheritance unless specified otherwise in the will.
  • If an individual dies leaving no person who is entitled to the estate, the State is entitled to the whole estate.

Choice of Executor and Trustees

  • Making a will enables individuals to appoint executors and trustees of their choice to administer their estate and manage testamentary trusts.
  • The appointment of trusted persons as executors is another benefit of having a will.  Individuals can ensure that their estate is handled according to their wishes, avoiding the appointment of a court-appointed administrator.

Special Powers and Directions

  • Individuals can use their will to confer special powers on executors, such as dealing with specific assets like shares and businesses.
  • Additionally, wills can include directions regarding the disposal of bodies after death, although these directions may not always be legally binding.

Avoiding Intestacy Difficulties

  • The absence of a will can lead to complications in administering an intestate estate, resulting in delays and increased costs. 
  • Without clear instructions provided in a will, establishing the rightful beneficiaries and distributing assets can be challenging, leading to potential disputes and legal proceedings.

Debt Management

  • A will provides the opportunity to specify how debts should be managed, offering greater flexibility than the default provisions outlined in the Probate and Administration Act 1898 (NSW). This allows individuals to tailor debt repayment arrangements according to their preferences.

Call us to arrange a free 20 minute no obligation consultation that includes case evaluation and cost estimate.

Can I dispute a Will?

There are various grounds upon which you can dispute a will. For further detailed information see our article Contesting a Will in NSW .

What Assets can and cannot be Included in a Will?

There are some assets that can be included in a will, whilst other assets cannot be included in a will.

The nature of the asset and its ownership at the time of death will determine whether an asset can and cannot be included in a will (Succession Act 2006 (NSW), s 4). This concept is guided by the nemo dat rule, which states that “no one can give what they do not have”. As such, assets are categorised as estate assets and non-estate assets. It should be noted that understanding and disclosing both the assets and liabilities are fundamental in drafting a will (see also Probate and Administration Act 1898 (NSW), s 81A).

Estate Assets (which can be Included in a Will)

Estate assets are assets owned in individuals’ personal names and form part of their estate. These assets can be disposed of by a will and typically include:

  • Real Estate: Properties such as land, houses, or apartments held as sole owners. 
  • Personal Chattels: Items like jewellery, antiques, vehicles, and furniture.
  • Financial: Bank accounts, Shares, bonds, debentures, and cash investments held individually. 
  • Trust Interests: Loans made by individuals to a trustee of a trust, as well as income and capital allocated from a trust.
  • Tenants in Common Interests: Shares in assets held jointly with others as tenants in common, where each tenant has a separate and distinct share that passes according to their will.

Non-Estate Assets (which can’t be Included in a Will)

In contrast non-estate assets are controlled but not wholly owned by individuals and cannot be disposed of by will. These assets include:

  • Jointly Owned Assets: Properties owned jointly with another person, such as the family home, where totality of their ownership passes immediately to the surviving joint tenant by the right of survivorship (see also Real Property Act 1900 (NSW), s101) and does not form part of the estate (Vagg v McPhee (2013) 85 NSWLR 154). 
  • Assets Owned by Entities: Assets held within partnerships, companies, or trusts, where ownership and control are vested in the entity rather than the individual.
  • Superannuation: Subject to member direction and trustee discretion, superannuation benefits may not form part of the estate but are distributed according to the fund’s rules or beneficiary nominations.
  • Life Insurance Proceeds: Depending on ownership arrangements, life insurance payouts may bypass the estate and be directed to named beneficiaries.
  • Pensions and Annuities: Account-based pensions or annuities with reversionary beneficiaries are typically excluded from the estate and distributed directly to the named beneficiary.
  • Family Trust Assets: Unallocated assets of a family trust, which are controlled by the trust deed and managed by the trustee.
  • Business Interests: Ownership stakes in businesses are often governed by partnership agreements, shareholder arrangements, or trust deeds, determining their disposition upon death.

Digital Assets

The emergence of digital assets, such as cryptocurrency and online accounts, poses unique challenges as many virtual assets do not form part of the estate or cannot be gifted through a traditional will.

When Should I Update my Will?

You should consider having your will reviewed regularly in order for it to be updated and consistent with your current circumstances.

An experienced lawyer can review your current will to ensure that it is legally effective and ensure you understand the rights and responsibilities it creates.

There are a variety of circumstances where it is important to update your will.

  • You have a new child
  • You get divorced.  If you have a current will, it will remain in force when you divorce.  You therefore need to redo your will.
  • When you get married.  Conversely a current will be automatically revoked when you marry.  You therefore need to redo your will.
  • A beneficiary dies
  • You have more assets to distribute
  • You want to remove a beneficiary from your will
  • You want to add a beneficiary to your will
  • You have sold a business
  • You have bought or started a business

Call us to arrange a free 20 minute no obligation consultation that includes case evaluation and cost estimate.

BSM Lawyers and the Benefits of a Will

BSM lawyers will discuss the benefits a will and how this affects you.  We always take the time to listen carefully and thoroughly to your needs and then advise on the most appropriate documents and structure for you.

Our lawyers meticulously draft your documents and then provide you with the opportunity to review these prior to finalisation.
We pride ourselves on creating watertight documents to minimise future risks in a cost-effective manner with a fixed fee. Compare our prices.

Brander Smith McKnight Wills and Estates Lawyers also provide professional legal advice and advocacy for executors in any estate including distribution and contested estates.

We have offices conveniently located in Sutherland, Parramatta, Wollongong and Sydney CBD.

FAQs

chevronIs a will the same as an estate plan?

A will is a document that determines how a person’s assets are to be distributed when they die.  An estate plan encompasses several documents that provide a detailed outline regarding a person’s financial and health issues that can be used when a person either dies or becomes incapacitated.  A wills and estates lawyer can provide you with assistance in drafting both wills and estate plans and provide more information on the nuanced differences between wills and estate plans.

chevronWhen is a will be invalid?

A will may be invalidated for a variety of reasons, some of which include:

  • Instances where a will-maker has been subject to undue influence. Undue influence refers to instances where a party has improperly exploited a position of trust or influence over the will-maker. Evidence of undue influence may indicate that a will-maker has prepared their will in a way that was not free and voluntary.
  • Instances where it is alleged that the will has been forged. For example, a will may be invalidated where someone has forged signatures to the will.
  • Instances where there is evidence that the will-maker was mentally incapable of making a valid will. For example, a will may be invalidated where it has been drafted by someone with a serious mental illness.

The experienced wills and estate lawyers at BSM can advise you on the range of circumstances which may invalidate the will.

chevronHow much does a will cost?

Brander Smith McKnight’s wills and estates lawyers provide meticulously drafted wills that minimise future risks in a cost-effective manner with a fixed fee.  Our prices are very competitive.  We explain the benefits of having a will in terms of your individual situation.

chevronWhat is the ‘capacity’ to make a will?

For a will to be valid, the person making the will must have the ‘capacity’ to make it.  ‘Capacity’ in this context refers to a person’s mental capability of understanding what a will is. Where a person lacks the understanding of what they are doing when they are making a will, they may not have created a valid will.  For more information on the requirement of ‘capacity’ in the context of wills, contact BSM Law.

chevronShould I draft my own will?

You can draft your own will, however you should consider having your will drafted by a wills and estates lawyer.  There are several complications that can arise where someone has drafted their own will. This is because there are various legal considerations that someone drafting their own will may fail to consider. Having a poorly drafted will can also result in unnecessary costs being imposed on your family.

Having your will drafted by a lawyer ensures that your will is legally effective and can be executed properly and efficiently. An experienced wills and estates lawyer will tailor the drafting of a will to reflect your instructions and circumstances. We will also ensure that you fully understand the rights and responsibilities that are created by your will.

chevronWhat is a ‘mutual will’?

Mutual wills are corresponding wills made between two people simultaneously.  Mutual wills are drafted in such a way that either party cannot revoke or changed their will without the express consent of the other party in the mutual will.  For more information on mutual wills, please contact one of our expert wills and estates lawyers.

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