A last will and testament is a legal document stating a person’s final wishes regarding the distribution of assets. It clarifies what to do with the deceased’s possessions and who shall receive them. In Australia, about 52% or 9.9 million adults in the population don’t have a will according to a 2018 survey. Most survey participants expressed that they don’t think about their deaths yet. They also don’t enjoy doing the paperwork.
In addition, 14% said they don’t have enough wealth to make any will. The survey also revealed that men are more likely to have a will than women. Furthermore, the majority of those who have a will came from the Baby Boomer generation.
Regardless if you’re not confident that you don’t have enough assets to make a will, you still have possessions to be distributed. Having a will is a guarantee that it will be carried out according to your decisions. This takes out the burden from your family as well.
How do the last will and testament work?
Anyone who is 18 years and older, and with a “sound mind” can make a will. If you’re making a will, here are the important things that should be included:
- It must be in writing.
- The testator— the person giving the legacy, should name a living person as the estate executor.
- The testator must sign the will in the presence of two witnesses.
- The two witnesses must also sign the will with the testator.
- Beneficiaries are not allowed to witness the will or they’ll lose their entitlement.
The testator can write the will, but it would also be ideal that a trusts and estates attorney draft the will to make the words precise, correct, and in accordance with the state’s laws.
Advantages of having a last will and testament
- It ensures that the distribution of your estate is according to your wishes.
You can outline all your final wishes in the will— from funeral arrangements and burial to who should inherit your possessions, whether to family members, friends or charitable organisations, or other institutions.
- It ensures that minor children will be looked after financially.
You can appoint a guardian that you want if you have minor children. Additionally, you can decide when your children will receive their inheritance. Minor children can own real estate, however, they don’t have the legal capacity yet to manage a property. Beneficiaries or anyone in the family won’t be able to sell or rent the real estate without including the children in the decision. Court intervention and approval will be required if such a scenario happens.
- It prevents disputes among beneficiaries.
All beneficiaries named in the last will and testament will benefit from the inheritance. Without a will, the whole process will be stressful, time-consuming, and more expensive as more legal issues might crop up among those who want to fight and make a claim on your estate.
- It saves time and money.
Having a will reduces the amount of inheritance tax and will help increase your tax savings. This may vary in every state’s laws. Consult with a lawyer to learn more about this matter.
What happens if there is no will?
Dying without a will is legally called intestacy. The rules on intestacy may differ in every region, but the most common scenario that will happen if a person dies without a will is that the assets will be divided between the spouse and children. If they don’t have any surviving immediate family, then the next in line to receive the assets are other family members such as parents, grandparents, relatives, aunts, uncles or cousins.
If it happens that there are no surviving family members left of the deceased, the estate will be given to the state or territory government under the Succession Law.
How genealogists can help
Solicitors turn to estate genealogists to track and identify the extended family or descendants of the deceased. A genealogist traces family trees and records to find missing beneficiaries and help them receive their inheritance.
Do you need probate genealogy research support?
Worthington Clark is a boutique family-owned and operated professional genealogy and asset research firm in Sydney with over 40 years of specialist experience in genealogy research for lawyers, trustees, companies, executors and beneficiaries. Request a quote for genealogy research services today.