To make a Will, we strongly advise that you make an appointment with a solicitor or trustee company. However, there are five steps in preparing your Will.They are: Valuing your assets
The best way to start is by roughly valuing everything you own. This is known as your ‘estate’. Most people say they have nothing to leave and they are usually surprised after listing all their assets (what you own) and then deducting all their liabilities (what you owe).
When compiling a list of assets you should think of the following items:
- your share of any assets owned as a tenant in common
- all assets that you own personally
- any superannuation death benefit paid to your estate (as determined by the Superannuation Trustees)
- interest in a partnership (less otherwise agreed)
- shares that you hold in a private company
- rights held under any contracts.
However, it is not unusual for people to forget to list and state what they intend to do with the following assets which in today’s world often constitute the bulk of an individual’s estate:
- assets held as joint tenant with one or more people
- assets owned by a company (you may be a shareholder in that company)
- superannuation (depending on the beneficiary nomination)
- assets held in a Trust
- life assurance policy proceeds paid directly to a beneficiary.
These assets are not automatically covered by the terms of your Will. They must be listed and allocated specifically.
All your assets must be accounted for under the terms of your Will otherwise you will die partially intestate and an application for Administration will need to be made to the courts.
Deciding who will benefit from your Will
These are the people and charities who will be, in legal terms, your beneficiaries. Simply note down their names and addresses and what you would like to leave them. It is not recommended to omit a member of your family or household as they could challenge your Will. This will delay finalising your affairs and also cost the estate money to fight any subsequent court case.
Your solicitor or trustee company can give you more information, but in general there are six major types of bequests:
- Specific Bequests are gifts of particular articles of property, houses or land, shares, cars, furniture, jewellery, artworks etc. given to a particular person or organisation
- General Bequests are usually gifts, sums of money or percentages of the value of your estate given to people or organisations
- Residual Bequests are made up of the remainder of your estate after the Specific and General Bequests have been distributed. You may wish to leave residual bequests to your family or friends or a charity such as the Motor Neurone Disease Association of NSW.
- Proportional Bequests are when you decide to leave a specifi c proportion of your residual estate e.g. 70% of my residuary estate to Motor Neurone Disease Association of NSW
- Alternative Bequests are when you make provision in your Will that if any named benefi ciary cannot accept your bequest, then the Motor Neurone Disease Association of NSW, for example, will benefit
- Trusts and Testament Trusts are increasingly popular forms of bequests. Whilst created for different purposes they have potential tax advantages and your name can be remembered forever. It is imperative that you seek legal advice before you establish any sort of trust.
Choosing your Executors
There are numerous steps in the administration of an estate, from assisting in the arrangement of the funeral, identifying and collecting assets, paying all debts, identifying all beneficiaries, applying for a Grant of Probate from the Court, completing taxation matters to the distribution of assets to beneficiaries.
Consequently the people you choose as your Executors (preferably have more than one) must have the time and ability to administer your estate. Always ask them first and if one Executor dies or lacks capacity (the ability to carry out his or her affairs without assistance) then a new Executor should be nominated.
Choosing a Solicitor or Trustee Company
Making a Will is not as expensive as most people think – but because it is a legal document, we strongly advise you to use a solicitor or trustee company.
If you do not have a solicitor, contact our Bequest Officer and you will be put in touch with a MND NSW honorary solicitor who will write a simple Will for a discounted fee, provided you leave the MND NSW a bequest in your Will.
Keeping your Will Safe
Once your Will has been signed and witnessed (do not ask a beneficiary to witness your Will for they will be immediately disqualified from receiving a bequest from you), you should keep it in a safe place, such as with your solicitor or trustee company. 15 We also recommend that you keep a copy of your Will for your reference and let your Executor know where the original is kept.