News & Features

When and Why You Need a Will

Experienced TGB Wills and Estates Lawyer Rod Behenna covers the basics about when and why you need a Will.

Experienced TGB Wills and Estates Lawyer Rod Behenna covers the basics about when and why you need a Will.

When do you need a Will? The simple answer is if you own any assets in your sole name and you wish to choose who receives them, or how they may be dealt with in a particular way, after your death.

If you do not have a Will then government legislation directs how your property is distributed.

If you die intestate (which means dying without a Will, not outside of South Australia) then government legislation directs how your estate is distributed.  Not having a Will can increase the legal, financial, and emotional burden involved in administering your estate.  The next of kin are usually the ones who will be left to sort out the deceased person’s affairs, possibly at a time when they are grieving and not up to dealing with the legal and administrative responsibilities.

Your Will can only deal with assets that you solely own.  That excludes many assets that people think they own, such as any property held as a joint tenant with somebody else which would pass automatically to the survivor.  Such jointly owned assets could be a house, money in the bank or shares.  If you have assets in a family trust they also are not personally owned, they are owned by the trustee of the trust.  You cannot deal with them in your Will.  At most you may own a share in the corporate trustee controlling the trust or be owed money by the trust.  Similarly you do not “own” your superannuation which is held by the trustee of the superannuation fund, who will distribute it to a nominated beneficiary (if the deed provides for that) or to dependants.  If the trustees of the superannuation fund decide to pay it into your estate then it will be dealt with in accordance with the terms of your Will.

Most people agree that the best advice is to have your Will prepared by a professional who can ascertain your wishes, guide you through any potential problems and offer insights that you may overlook without such assistance.

To avoid any problems occurring later, a certain procedure needs to be followed when your Will is signed and that is automatically attended to when your Will is professionally prepared.

If all of this sounds too difficult, take heart. The author of a leading 500-odd page textbook on the subject of “Wills” also thought so, and died without one!

Rod has more than 40 years of legal experience. To organise your Will or Estate Planning matter contact your nearest TGB office