There are many things to consider when making your Will, much more than simply the property you own, writes the TGB Wills and Estates team. 

There’s more to preparing a Will than you probably think. Behind the eyes of a wills and estate lawyer should be a whole factory full of flashing lights and alarms. ‘What if’s’ whizz by, dodging past pro and cons and bumping into Qs and As. A set of scales weigh up risk and value, and detailed maps make sense of mayhem.

Below are just some of the questions and issues a lawyer may want you to consider – but don’t be alarmed – it is our job to walk you through your will preparation, obtain from you and clarify your wishes and intentions, and provide to you the best advice and documents possible.

What do you own and/or control?

Have you carefully considered all of your assets and property over which you have some control? Don’t think just about your house, car and personal effects; consider your superannuation, insurance polices, shares, investments, bank accounts, family trusts, powers of appointment, businesses, digital assets, licenses and leases.

How do you own or hold your assets?

Is your property in your sole name, or is it held with others? Do you hold it as joint tenants or tenants in common, and if the latter what proportion do you own? Do you own it or do you merely have a right to use it or a licence that ends upon death? Is that the best way for you to hold your property?

Who?

Have you thought about everyone you wish to provide for or who deserves to be provided for? What about step children or future children? What about a charity?

If the worst should occur and all the members of your household were in an accident, to whom would you want your estate to pass? Should half of your estate pass to your side of the family and the other half to your partner or spouse’s family? Is 50/50 the right ratio, or have you contributed more to your family’s assets?

Who should be your executor? What if they can’t be – who then? Anyone else? What about a guardian for your infant children?

When?

If something happened to you tomorrow what age would you want your children to inherit? Is eighteen a little young for your kids to receive a large sum of money? Or would you rather a responsible adult look after their money (ie. hold it ‘on trust’) until they get a bit older?

How?

How should your beneficiaries receive their money? Are you happy to give them a lump sum? Are they able to look after their money effectively?

For such an instance, you may wish to choose someone to look after their money for them. If so, how much money would you want that person to provide to them, and how often and for what purpose? What happens if the person looking after the money dies? Who should take over? How much of the money do you want to be used – all of it, only the income, or perhaps half of the capital? What happens when that beneficiary dies, where does the left over money go (if any)?

What?

What should you give and why? Do you want to give everything equally, or is someone more deserving? Do you have specific items you want to give to certain people? Do you want to give someone the ability to live in your home for a specific amount of time or upon certain conditions after your death? What amount do you want to give, and what if that amount would be inadequate, taking into account the economy, in the future?

Why?

Do you want to help or protect certain people? Do you want to make sure your children are looked after even if your spouse remarries?

Are you married? Are you thinking of marrying? Have you been through a divorce or separation, and if so, did you do a property settlement? Do you or your partner or spouse have children from previous relationships? Do you want to provide for your partner’s children if your partner passes away before you? What if you decide to re-partner?

And it is not only obtaining answers that are important, it is the ability to use that information to create clear and effective writing – to make a Will that satisfies you AND the law.

When thinking about the above questions, you too should be thinking about the questions you would like to ask us. Get your own cogs turning – the confusion, the rumours and the possibilities. We love it; it’s what our minds are made of.

For advice about your Will or Estate issue, contact your nearest Tindall Gask Bentley office. You can also start your Will online here.

On August 1, 2017, the Relationships Register commenced in South Australia, giving greater legal recognition to LGBTQI and de facto relationships. To find out how the Register impacts your will click here.