If you need to prepare a simple will, it makes sense to buy a will kit and do it yourself, right? In fact, the laws surrounding wills and the passing of assets are quite complex, so by using a will kit, you could find that your wishes are not carried out after you pass away – which can end up costing you or your loved ones more in the long run.
What are the potential problems with DIY (or off the shelf) will kits?
One of the biggest risks with doing a DIY will is that they can be misinterpreted by your executors. Whilst you may think that your intentions are clearly set out, if your will is not worded correctly or is ambiguous as to your intentions, there is room for dispute among your chosen beneficiaries.
Your will could be invalid
When it comes to drafting wills, the words and terminology used are very important. The Supreme Court of NSW has very strict formal requirements for what makes a will valid. If your will does not comply with the formal requirements, your executors may come into difficulty in administering your estate. This will not only lead to additional costs for your estate but will also add extra stress to your loved ones in an already difficult time.
Assets being missed
Another common problem with homemade wills is drafting something too broad that does not specifically deal with all of your assets. If this happens, the forgotten assets risk falling under the intestacy rules (where there is no will), which can lead to additional costs for an estate.
It may seem sufficient to have a discussion with your beneficiaries about how you would like your assets to be distributed. However, without the protection of a legally binding document, your beneficiaries may end up in conflict about your assets. Unfortunately, conflicts over items – especially those with sentimental value – are common, and if your will does not specify who receives what, this can lead to additional costs for your estate as well as the emotional stress for your beneficiaries in dispute.
Wills stored at home are at risk of being lost or damaged over time.
If no valid will is found after you pass away, the rules of intestacy will apply. In New South Wales, this means your assets will be distributed according to a formula as set out in the Succession Act 2006. This formula is very prescriptive, so does not take into account your specific circumstances or intentions.
Why you should have a solicitor prepare your will
There are many reasons to see a solicitor for help in preparing your will.
Minimise the risk of confusion
A solicitor that specialises in wills will use clear language when drafting the document, which helps minimise the risk of any confusion over your intentions. They will speak to you at length to understand your exact wishes for your assets and personal items, and include these in the will, in addition to the correct legal names of your beneficiaries.
Ensure the document is valid
A solicitor will ensure your will is valid – that is all the I’s are dotted and T’s are crossed. They are familiar with the formal requirements of a valid will and where all parties need to sign, and so on. This ensures that the process for administering your estate will be as straight forward as possible and that your wishes will be carried out in accordance with your will.
Benefit from personalised advice
A solicitor will also be able to inform you of any potential risks in your will, such as whether there may be grounds for a person to challenge your will should you choose not to leave them a gift from your estate. A solicitor can also advise you on different ways of structuring your affairs should you have a blended family or complicated family situation.
There are also some assets that are not covered under a will, such as superannuation, life insurance policies and property which is held as joint tenants. A solicitor can guide you on how to deal with these assets, giving you comfort that all your assets have been dealt with in an appropriate and lawful way.
Advice on how you can continue to care for your loved ones after you pass away
If you have a vulnerable person you need to accommodate for after you pass away a solicitor will also be able to advise you on the appropriate legal frameworks you may want to put in place. This may include establishing a testamentary trust to protect the assets which you would like to gift and the person you are gifting them to, or granting someone a right to reside in your property for a certain period of time. Whatever your circumstances may be, our team of solicitors have the tools to advise you on the best way to structure your affairs.
What about Powers of Attorney and Enduring Guardianship
When drafting a will it is also important to consider what you would like to happen in the event that you lose capacity and are not able to manage your own affairs. A solicitor can also advise you on power of attorney and enduring guardianship documents, which appoint a trusted person to help you manage your financial and legal affairs and health and lifestyle decisions should you not be able to make those decisions for yourself. These documents cannot be enacted without the assistance of a solicitor. A solicitor can help tailor these documents to your individual needs, and give you the comfort of knowing that whatever may happen your loved ones will be able to take care of you and your wishes will be followed.
A solicitor can store your will for you, which minimises the risk of the document getting lost or destroyed. If you choose to store your will with your solicitor, it is important to let others know where it is stored so they can contact them after you pass away.
We can help
While it may seem simpler and cheaper to use a DIY will kit, in truth there are risks involved in taking this approach that could end up costing your estate more time and money than if you had prepared your will with a solicitor in the first place. By getting professional advice from a solicitor you have the comfort and peace of knowing that your loved ones will not be placed under any unnecessary stress in an already difficult time.
At Carter Ferguson, we have a team of specialists who can help you draft a valid, personalised and clear will. We take the time to make you feel comfortable, we listen to your wishes and guide you along the way. Contact us to start the conversation.