Where there’s a will……

Now that it would appear that I have learned where in my internet favourites to find the link to my blog, I’d like to attempt my next trick…….to tackle wills and estates. Now this is an extremely in-depth area of the law for which entire libraries of books have been written – I personally have an entire shelf dedicated to the subject. Those are just the books on this topic; my precedent library is being housed on hard drives in a decommissioned ex-military mountainside complex I acquired for a song.

All that aside, what I plan for here is a simple “idiots guide” if you will, for a document that far too many people see as unimportant or leave far too late to do anything about. In coming posts I’ll get more in to the issue of trusts which is a big part of this area of law. But for now let’s keep it relatively simple.

After my last article, I was asked the question of what happens if you die without a will. Simply put dying without a will can create a mess for your loved ones you frankly wouldn’t wish on your worst enemy. Your assets may be distributed to relatives you never intended to be included (we all have them), leaving your most loved left inadequately provided for – which may place extra burdens on them, both emotionally and financially, when they are already dealing with your loss.

For a great deal of people, it’s been quite common for many years to just purchase those little “do it yourself” will kits from a book store or post office. Before I got in to the legal profession, I myself was guilty of thinking this was a simple easy fix. Surely a person with an above room temperature IQ could navigate through this and get the job done.

Well, it turns out that for the most part, these free will kits aren’t even worth the paper they are written on. If you want a better use out of those forms, may I suggest leaving them in your lavatory in case of emergency.

There are some things that a free kit or DIY advice from the internet simply cannot tell you. Legal insurance providers have made a fantastic industry out of (rightfully) scaring the living hell out of legal practitioners. There is a lot that can go wrong which is why we are held to very high standards, tight professional restrictions and guidelines. This is why using Google lawyer or something you bought at a post office really isn’t the best way to ensure your family’s future.

When you first consider making a will there are a number of steps you should follow. Start out by having a plan, at least in your head, of where you want your assets to go, who should be in charge of the distribution of said assets and even what you want done with your remains when you pass on. Personally I’m in favour of a Viking funeral on a river but my spouse is having none of it.

Once you have a plan in mind for the basics, there are a few ways you can go. If your wishes are fairly simple and your estate a rather modest one, you can take advantage of the Public Trustee. They are the largest will making service, they will assist you for free and offer free secure document storage of your will and are conveniently located pretty much everywhere. For a simple will, their service really will take care of your needs.

However, if you find yourself with a medium to large estate, you really need to seek legal advice. Let’s face it, with the value of most homes now, assets and other belongings, a medium to large estate is reached in size quite quickly. It doesn’t mean that you need to have Oprah money before needing a lawyer. It’s important to do your research before engaging a lawyer as well. In my own experience, I’ve used well established, medium sized firms to undertake this work. It may be slightly more expensive than a small practice, but can you really put a price on peace of mind?

Another question that was asked of me was if it is too early to make a will. The simple answer to that is if you are over the age of 18, then it is never too early. A good will is effectively a “living document” that will change with your needs and circumstances over the years. This document will need updating when you are married or in a long term relationship, termination of said relationship, children coming in to your life (whether they are your own, or perhaps you want to provide for your nieces or nephews), death of a significant other, changes in your financial circumstances, injury or disability. There are a lot of things life will throw at you, and having your will reflect that in case of the unexpected is essential for your loved ones and for your own peace of mind.

In Australia, we have some hard facts to face in that we have a large and rapidly ageing baby boomer population. Alzheimer’s and dementia are being diagnosed more frequently which brings up a huge and heartbreaking issue of capacity. Put simply, is the person of sound mind and in possession of the ability to make a will? A lawyer (who doesn’t want to be sued or brought before a disciplinary tribunal) will ask some basic questions in order to satisfy themselves that this is the case.

If you are a child of a baby boomer, as I am, and Alzheimer’s disease runs in your family, as it does for mine, you’ll want to get this sorted as quickly as possible.

If your parent is of sound mind, seek out that lawyer and ask for both a will and power of attorney document to be drawn up. Put very simply, a power of attorney document means that as soon as a person becomes incapacitated, their wishes will be able to be carried out by you (or whoever they nominate) acting on their behalf. Ensure that the wishes of the person making these documents are very clear in terms of any health and financial decisions. You really don’t have any time to waste in sitting down with your parents and making sure they have both power of attorney and a will locked away in a lawyer’s safe ready to go.

If your parent is already in the throes of this disease, then it’s already too late. You should still consult a lawyer for your options but a person who is mentally incapacitated or challenged is unable to make legal decisions such as laying out their wishes in a will. If you have this done in any case it will be overturned by a court in fairly short order. I’ve seen this happen in my own family, and believe me it’s far too heart wrenching and unpleasant. I really wouldn’t wish that experience on anyone.

As I mentioned above, in posts to come, I will get a great deal more specific about preparing wills, and even delve in to the subject of putting together a trust. But for now, this should provide adequate food for thought in getting you started in protecting your family and your personal estate when the time comes.

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