When it comes to legal matters A will is one of the most crucial legal documents you can create, yet many people put off making one. Whether it's due to procrastination, the belief that they don't have enough assets, or simply discomfort with the topic of death, failing to prepare a will can leave your loved ones in a difficult position. At AviorLaw, we believe that planning for the future through a well-drafted will is an essential step in ensuring your family is protected.
What Is a Will?
A will is a legal document that outlines how you want your property and assets distributed after your death. It allows you to control what happens to your estate, ensuring your wishes are followed. In addition to property distribution, a will can include instructions for things like the care of minor children, funeral arrangements, and even donations to charity.
In Western Australia, wills are governed by the Wills Act 1970, and they must meet specific legal requirements to be valid. By making a will, you have the opportunity to decide who will benefit from your estate, instead of leaving it up to the laws of intestacy.
Why Make a Will?
The most important reason for making a will is simple: it gives you control. Without a will, your assets will be distributed according to the default rules of intestacy, which may not align with your wishes. By making a will, you ensure that your property, savings, and sentimental possessions go to the people or causes you care about.
Another significant reason for creating a will is the ability to appoint an executor—the person who will carry out your wishes. This can be a trusted family member, friend, or even a professional such as a solicitor. Your executor will handle tasks such as settling debts, paying taxes, and distributing assets, so it’s vital to choose someone who is responsible and capable.
What Happens If You Don’t Leave a Will?
If you die without a will, you are said to have died intestate, and the distribution of your assets will follow the legal formula set out in the Administration Act 1903. This process can leave your estate in the hands of people you wouldn’t have chosen, or exclude those you wanted to benefit.
Additionally, the lack of a will can cause unnecessary legal complications and stress for your loved ones. Disputes over inheritance can arise, leading to lengthy and costly court battles. Making a will can prevent these issues and provide clarity to your family during a challenging time.
How to Get Started with Your Will
Making a will doesn’t have to be difficult. While you can purchase will kits from newsagents, it's important to remember that a professionally drafted will offers greater security. These standard forms can help remind you of the essential points to include, such as:
Stating that it is your will and clearly identifying yourself (the testator).
Naming your beneficiaries—those who will inherit your assets.
Appointing an executor.
Clearly dating the document, as the most recent will supersedes any previous versions.
However, it’s highly recommended to consult with a legal professional to ensure that your will covers all necessary aspects and reflects your true intentions. This is especially important if your circumstances are complex, such as owning a business, having significant assets, or wanting to exclude certain family members.
Legal Requirements for a Valid Will
In Western Australia, a valid will must meet the following requirements:
It must be in writing.
It must be signed by you (the testator) in the presence of two witnesses, both of whom must be over 18 and present at the same time.
The witnesses must also sign the will in your presence.
The will should be dated to avoid confusion about which version is the most recent.
A will made by a person under the age of 18 is generally not valid, and the witnesses cannot be beneficiaries or related to the testator.
Keeping Your Will Up to Date
A will is not a "set it and forget it" document. Life circumstances change, and so should your will. Key events that might prompt an update include:
Marriage or divorce.
The birth of children or grandchildren.
Significant changes to your financial situation.
The death of a beneficiary or executor.
The acquisition or sale of major assets.
If your changes are minor, you can amend your will by adding a codicil, which is a legal document that modifies the original will. For major changes, it’s advisable to create a new will.
What If You Don't Have "Testamentary Capacity"?
There may be instances where someone is unable to make or change their will due to mental incapacity, such as dementia. In such cases, the court may intervene and make, alter, or revoke a will on behalf of that person, provided the court is satisfied that the will represents what the person would have wanted if they were of sound mind.
Dying Without a Will: The Risks
If you pass away without a valid will, your estate will be distributed according to the intestacy laws, which follow a strict formula to determine who receives your assets. This can result in unintended consequences, such as estranged relatives inheriting your estate while close friends or charities you care about receive nothing.
Secure Your Family’s Future with a Will
At AviorLaw, we understand the importance of protecting your loved ones and ensuring your wishes are carried out after your death. Whether you need to create your first will or update an existing one, we are here to provide expert guidance and draft a document tailored to your unique circumstances.
By making a will, you take an essential step toward safeguarding your family’s future. Contact AviorLaw today to discuss your estate planning needs and start the process of securing peace of mind for you and your loved ones.
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