Wills and Things You Should Know

Yes, the Public Trustee prepares Wills without charging a fee. But if you are persuaded by that gimmick, be aware that upon your death his charges are based upon a percentage of the value of the estate. It's like a death duty. The "free" service offered is ultimately really quite expensive. A Solicitor will assist your Executor to administer the estate, part of which after advice the Executor may complete without further engaging the Solicitor. The Solicitor will undertake that part of the administration considered "legal work" e.g. obtaining Probate (when necessary) transferring of real estate etc. and charges for what he does, not for how much you have.

No, your estate is not paid to the Government or to the Public Trustee if you die without a Will or if your immediate family is wiped out. The extended family will benefit. The Government only has a windfall if you have no relatives at all - a most unlikely situation. Not a good excuse though, for not deciding who should inherit your life's savings.

You and your spouse will have separate Wills but sometimes there may be cause for concern as to what will happen after your death. Will your spouse re-marry, make another Will favouring a new partner who then outlives your spouse and takes the whole of his/her (including your) estate. What about your children and "their rightful inheritance". You and your spouse can make Mutual Wills, i.e. Wills based upon an agreement never to revoke without the consent of the other. After your death your children can then contest any new Will and the Court can set it aside in favour of the old Will.

A defacto relationship can result in a partner ranking as a spouse with an entitlement to an adequate provision.

Step children are now the lucky ones for they are entitled to adequate provision not only from the estate of their parents but maybe also from their step-parents providing the marriage between the parent and the step parent was still subsisting when the death occurred.

If a Will is made before marriage, it will be revoked upon your marriage unless it is expressly stated to be made in contemplation of that marriage.

Upon divorce all references to your spouse in your Will are null and void - so you may consider there is no need for an urgent review of your Will. But what happens if you separate and then die before the commencement of property settlement proceedings? If you have already commenced proceedings, your Executor continues the action. But if you have not and your Will favours your spouse or if you own property jointly with your spouse, then he/she will take and who knows where your property will eventually end up. If the marriage has ended you need a new Will immediately (and some Family Law advice too)!

And remember to constantly review your Will. A change in relationships, or a change in your property may be adverse to your current Will.