What a Will kit doesn’t do

There are various ‘Will Kits’ available online – most are cheap or free and all you need to do is download them and fill in the blanks. Some websites even boast that you can prepare your will ‘without spending hundreds of dollars on legal fees’.

Simple, right? Not really.

A will is an important document that deals with how your assets are to be divided up after you die. Using a will kit or generating a free online will may seem easy, but the ‘hundreds of dollars’ that you might save cannot make up for the possible pitfalls in preparing a will without legal advice.

This article builds on our previous article on ‘Why it’s a bad idea to write your own will‘, which identifies some of the common mistakes we see with DIY wills. In addition to those potential pitfalls, one of the main issues is, when you generate your own online will, you don’t have the opportunity to discuss your family and your circumstances and a lawyer does not have the opportunity to identify and deal with any potential issues unique to you.

A lawyer with an understanding of succession law will guide you through this process and create not just a will, but an effective estate plan.

The following are some of the important considerations that an experienced lawyer will address, that a will kit may not.

Your lawyer will prepare an estate plan, not just a will

A lawyer will take a holistic approach and consider all aspects relevant to your estate plan. Not only is it important to plan how your assets are distributed when you die, but you need to provide for contingencies such as appointing guardians and attorneys if you become incapacitated and are unable to manage your financial and personal affairs.

A lawyer will also consider how your assets are held, which is important because this can determine if and how those assets may be left. For example, when assets are held jointly with another person, the surviving person will automatically receive the deceased person’s share when he or she dies. A contrary direction in a will to leave that share to somebody other than the joint tenant will not override this legal principle. A lawyer can advise whether it is in your interests (and, if so, how) to sever the tenancy, which will then enable you to leave your share to whomever you wish.

Your lawyer will also discuss your superannuation and death benefits, which do not automatically form part of your estate. In most cases, your benefits will be paid directly to a superannuation dependant either at the discretion of the trustee or in accordance with a death benefit nomination.

Preventing a gift from failing

A common problem with will kits, especially if it is done once and never updated, is the risk that an intended gift to a beneficiary may fail.

A gift failing is called ‘ademption’ and it occurs when specifically named property in a will is no longer owned by the will-maker at the time they pass away. Consequently, the intended beneficiary of that gift may lose out altogether.

The ademption of a gift can have a significant impact on the value of assets received by a beneficiary, particularly where the asset is significant such as a house or share portfolio.

Protecting your assets and tax planning

Your lawyer will advise on how to best structure your will to protect your assets against distribution to an unintended beneficiary (such as a child’s estranged partner or the creditors of a bankrupt beneficiary).

A testamentary discretionary trust may be appropriate. This is a trust created in your will that comes into effect after you die. The trust is administered by a pre-appointed trustee who determines how and when estate assets are managed and distributed.

If properly managed, the flexibility of a discretionary trust allows beneficiaries to access favourable taxation treatment with respect to their inheritance and provides protection for vulnerable beneficiaries. With careful planning, the timing of transferring estate assets may also postpone or minimise capital gains tax.

An online will kit is unlikely to consider these matters and, in any event, cannot provide the legal advice necessary to decide whether this type of will is appropriate in your circumstances.

Guarding against family provision claims

A successful family provision claim may result in the terms of your will (despite your intentions) being amended to provide for an ‘eligible person’.

Family provision rules do vary between jurisdictions; however, an eligible person generally includes a current or former spouse or de facto partner, a biological, adopted or step-child of any age, and certain dependent members of the deceased’s household. An eligible person may make a claim against the estate of a deceased person if he or she believes that they have not been properly provided for under the will.

Your lawyer can identify potential claimants under the family provision rules relevant in your jurisdiction and, if necessary, advise on how to reduce the likelihood of such a claim.

Conclusion

Yes, you can absolutely prepare a valid will using a will kit or online. However, there are considerable risks with a will kit, including:

  • it may not be prepared correctly,
  • may not be tailored to your unique circumstances,
  • may not achieve exactly what you want, and
  • may not take advantage of available structures to protect assets and save tax.

Planning your estate and having your will prepared by a lawyer is a smart move. Your lawyer will ensure your will is valid, correctly executed and protects your assets and your beneficiaries.

If you or someone you know wants more information or needs help or advice, please contact us or check out the WA Public Trustee’s website for more information.

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