Will

Have you ever thought of making a Will?

If you are anything like me, it’s one of those things that I always seem to put off.  After all, I have a whole lifetime to do it.  I have always made up excuses for not making a Will such as ‘It seems so complicated’, ‘It might cost a lot of money.’ and ‘I’ve already told my family and friends what I’d like to happen.’  These concerns, however, do not necessarily mean that you have to put off making a Will.

A Will can be described simply as a document that expresses your wishes about the distribution of your estate. (Your estate is everything owned at the time of death, such as your property, assets and money). Below are some considerations about making plans around what happens to your estate, making sure your wishes are carried out, especially who inherits parts of your estate, and some links covering processes and for a valid Will under NSW legislation.

‘It sounds complicated’

There are however certain requirements for a Will to be valid.  The main requirements are that firstly the Will is in writing, secondly that it has been signed by the person making the Will and thirdly that two witnesses are present, who sign to confirm they have witnessed the person sign their Will.

If you make a Will, you may like to consider what to include in the Will.  You will also need to choose an executor. This can be a friend, a family member or solicitor, or even an organisation. You can also make the NSW Trustee & Guardianship your executor.  The role of your executor is to carry out the instructions in your Will including your funeral wishes, and manage the affairs of your estate. Some tasks carried out by the executor may be to apply for a grant of probate. Probate is the process to establish the validity of the Will, pay any debts, finalise financial matters and distribute the estate as instructed in your Will.

If you have children under the age of 18 years old, you may like to also include provisions for your children by designating an adult (called a testamentary guardian), who will be responsible for their care and for their upbringing.  If you have pets, you might like to designate someone to take care of your pet/s and/or allocate money towards their care.

Normally, you will also need to record all your accounts and memberships and list your beneficiaries who will have a share in your estate, list who will receive gifts, give funeral directions, even describe what you’d like to happen to your digital profiles after your passing.

‘It might cost a lot of money.’

You have several options when you are ready to write your will, some cost more than others.  You may decide to write your own will or use a will kit. Various templates are available online and can be downloaded for a minimal fee, and can cost between $10 – $20. You may need to get legal advice if these cheaper options are legally binding under NSW law, which will add to this cost.

If these templates are legally binding, on the one hand they will generally cover what is needed in a will and meet the necessary guidelines, however on the other hand, the template may be too generic if your particular situation is more complex.

The NSW Trustee & Guardian offer a range of options to set up a Will, store your Will and important legal documents. Alternately, you also have the option of hiring a lawyer to complete your Will, have the opportunity to discuss any potential complexities and ensure it is legally binding under NSW law.

‘My family and friends already know my intentions’

You may think a Will is not necessary, if you have already told your family and friends what you would like to happen with your estate.  A Will, however, may provide clarification of your intentions and more certainty that expecting your wishes will be carried out when you’re no longer around.

Someone who dies without a valid Will is said to have died intestate.  In this situation the intestacy laws may be applied.  These are laws set out who benefits from the deceased’s estate in order of priority and what proportion of the estate each person receives. This may not match with your personal priorities and can result in your wishes not being carried out as you would have liked.

A written valid Will reduces any uncertainty or potential disputes for your loved ones, at an already difficult time. If your Will is not valid, it can also become a lengthy and expensive process for your family, biological or chosen, especially if aspects of your wishes are challenged in court.

Making and updating your Will can ensure you have peace of mind that your wishes will be respected and that your loved ones will be cared for into the future. There are two other main documents to ensure your wishes are respected during your lifetime. These are Enduring Power of Attorney and Enduring Guardianship.

Within the NSW Government, the two main websites that can assist you step-by-step to process your planning are:

In July 2021, Positive Life will be running a full day workshop on End of Life Planning with other people living with HIV and a range of speakers. Call the Positive Life Communications Manager for more details on (02) 9206-2177, 1800 245 677 (freecall) or email contact@positivelife.org.au

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