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Life is good. You’re (reasonably) young, fit, healthy, have a steady job and are in a loving relationship with perhaps a family already in progress. Believe it or not, now is the perfect time to think about what happens when you pass away.

Not to be too morbid, but if you haven’t already guessed, we’re talking about having a legal Will in place so that your property and assets are distributed according to your wishes.

It is a practical, sensible thing to do because having a Will in place now means you can get on with life secure in knowing that should you pass away, your wishes are clear and will be respected.

So, do you need a Will?

Unless you are young, single and have no assets or dependents, you should have a Will. If you pass away and do not have a will you are said to have died intestate and, along with causing all sorts of headaches for your family, your assets may not be distributed as you wish as the Administration and Probate Act 1919 will apply and it sets out how and to whom your assets are to be distributed.

If you are married, have children, own property or have significant assets, you should also have a Will in place.

  • If you are married, it is essential to put in writing whether your spouse gets your assets when you die. They will likely inherit most of your estate if you die without a Will, but why leave it to chance? If you want someone other than your spouse to receive any of your assets, you’d also need to include that in your Will.
  • If you have children and want them to inherit your assets after your spouse, you need to put it in writing. That way, there’s no room for error or interpretation by the Courts. Likewise, if you don’t want one of (or all of) your kids to inherit, then that also needs to be in writing.
  • If you’re single and do not have children,  then you still need to have a Will. Many people without children think they don’t need a Will but it is important to have one and make sure those you want to have your assets when you are no longer here actually get them.

Of course, you can (and should) review your Will every time you have a change in your circumstances. However, it only needs to be changed if your personal circumstances change like getting married or re-married, when you divorce or separate from a spouse or partner, when you have more children or when you want to change those nominated in your will to receive some or all of your assets to someone else.

Regardless of whether you’re married or single, have children or not, or have significant assets in place, it’s vitally important that you have a Will so that the decision is being made by you as to who gets your assets and its not left to state legislation.

Making a Will: the nitty-gritty

Okay, you’ve made the decision that a Will is probably a great idea. How do you go about it?

For peace of mind, it’s wise to have your Will prepared professionally by a lawyer. Clarke Hemmerling Lawyers can help you through the whole process and advise you on all aspects of your Will while ensuring it is properly drafted and executed. We can even make recommendations as to the storage and security of your Will.

Essentially though, here are a few things you need to be aware of when making your Will.

For a Will to be valid:

  • You need to be 18 years of age
  • It must be in written form
  • It must be signed
  • It must be witnessed by two people at the time of signing (preferably not beneficiaries)
  • You must have ‘testamentary capacity’ to make a Will

If any of the above are not satisfied, you may die intestate. This will mean your assets will be distributed to your relatives based on  Part 3A of the Administration and Probate Act, 1919.

You’ll also need to appoint an Executor:

  • You can nominate a friend, family member or anyone you think will act in your best interests
  • You can also choose more than one Executor
  • You can appoint the Public Trustee, but they will charge for their services

You can choose your beneficiaries; however, a family member(s) can contest your Will if they feel they haven’t been adequately provided for.

If you get married, your Will is automatically revoked unless it has been made in contemplation of marriage. If you divorce, your spouse is no longer entitled to benefit from your Will and any clauses leaving them property are revoked.

If your Will is made in another State or Territory, it will be recognised as valid in South Australia as long as it satisfies all requirements outlined above. However, if you own property or assets in another State or Territory, your Will must fulfil all requirements for that State or Territory as well.


Some other considerations

On top of deciding who inherits your assets, did you know you can specify your funeral arrangements?  You can explain why you haven’t left anything to someone who may be expected to receive something.

Another consideration when making your Will is creating an Enduring Power of Attorney and an Advance Care Directive. Please speak to the talented team at Clarke Hemmerling Lawyers about what this entails and why both should be considered.

A Will can be as straight forward or as complicated as it needs to be. The important thing is to get it right so that there are no complications when the time comes for it to be used. Talk to the professional team at Clarke Hemmerling Lawyers about the preparing your Will today.

This blog post does not constitute legal advice and should not be relied upon as such. It is a general commentary on matters that may be of interest to you.  Formal legal or other professional advice should be sought before acting or relying on any matter arising from this communication.