Making a Will
Ask for professional help when doing a will
A do-it-yourself will kit may seem like a cheap alternative to engaging a lawyer to assist you with a will, but they are not comprehensive enough in our view. Most people will often look at the blank form in the will kit and still not understand the important questions that have to be asked when you are doing a will. Quite often you don’t realise what is important until a professional asks you the right questions to provoke you into thought. A will kit cannot do that for you, but we can.
So why should you have a will?
I will never forget watching them fight over an old box of stamps. Their mother had just died, and they were standing in the lounge room not a week after the funeral having a heated discussion over who should get her cherished stamp collection. Their mother, my client, had left a very detailed will, but even she could not have foreseen this battle unfolding over an old box of stamps; they were not particularly valuable in monetary terms, but clearly they were emotional keepsakes from their mother’s childhood of great value to them. I suggested they share them, but that fell on deaf ears at that time. Clearly, my client did not consider the stamps would motivate such tension among her children or did not care about the stamps enough to deal with them in her will? Perhaps they were something she could have given away to her children when she was alive?
With all the good intentions you can muster, you believe the handling of your wishes under your will after you pass is going to be achieved in a positive and mature way and normally that is the case; but while your executor can do their very best to calm the raw emotions and feelings of loss, things can often spiral out of control, especially if there was already tension at play between your beneficiaries before your passing. If there was friction or tension at play while you were alive, it has the potential to increase exponentially after your passing and the will can often be a catalyst for this. This is not always the case, but it does happen. You don’t anticipate for one second that your much-loved beneficiaries might be propelled into an emotional tug of war over things that quite often held little meaning to you while you were alive.
Sometimes, as can be seen above, even when you have left a detailed will you can’t always foresee other people’s feelings about things. In the case above the executor wisely placed the stamps in a pillow case and let each sibling choose a stamp, alternating until all 160 stamps were disbursed. He was very lucky there was an even number of stamps.
I did not tell you the story above to suggest that my client should have included the stamps in her will. That would not have solved anything in this particular case. What I want to convey to you is that even with the most detailed will and the best of intentions things can still go pear shaped and there are many areas that can present as the platform for this sort of tension.
When the time comes to make your will, be open about it. Tell your children, as much as possible, about what’s in the will so there are no surprises later and if you are unable to do this then write out in detail the reasons for your decisions. A will is your last message to your beneficiaries and is one of the most important documents you will ever complete.
While having a will won’t necessarily avoid tensions, it is imperative you have a will to ensure that you get a say in what happens to your property when you pass. If you don’t have a will, then it will be distributed according to a legislative formula, and someone else gets to stand in your place and make all of the decisions for you. Get a will done by a professional. Contact Us.
When should I do a new will?
In short… if there are changes in your life, then it is time to review your will. It will be a chance to review and perhaps update your will if you are experiencing changes in your life, such as:-
- Moving interstate;
- If you are getting married or separating or possibly moving in with a new life partner;
- Bringing a new baby into the world or you might have new step children;
- You have just sold substantial assets which might affect some of the bequests you have made in your will;
- You are moving overseas and are intending to purchase assets in a foreign jurisdiction; or
- You have simply changed your mind.
What is Probate and do I need to apply for a grant?
Put simply a grant of Probate is the lawful recognition by the Supreme Court of Queensland that a will is valid. A grant authorises you as an executor to deal with the estate of your deceased loved one. Sometimes a grant of Probate is not needed. It depends on a number of important things as to whether you do or do not need a grant of Probate. As a first step it is important to book an appointment with us because we know the important questions we need to ask you to establish whether or not you need a grant of Probate.
If you do need a grant of Probate you won’t be able to deal with the assets of the estate without one. If you do need a grant, as the executor of a deceased estate or other approved applicant, you cannot take charge of the estate’s assets and distribute the assets in accordance with your loved one’s wishes under their will until you have one. If you do proceed without an appropriate grant, you can be held personally liable for any loss or damage suffered to the estate’s assets arising from your actions. You may also need a grant of Probate because some people or organisations holding assets of the estate will not release them without sighting a grant of Probate.
There are a few different types of grant, depending on the particular circumstances.
Grant of probate — where there is a valid will and you are applying for a grant as an executor named in the will.
Grant of letters of administration of the will—where there is a valid will but you as the applicant are not the executor of the will.
Grant of letters of administration on intestacy—where there is no valid will in place. In this case the estate will be administered according to the intestacy rules under the Succession Act.
If you need to apply for a grant or you are not sure whether you need to apply please contact us.
Our costs for a standard application