Will FAQ's
Following is some basic information about Wills that may assist you to understand why and when you need a Will, and help you to prepare one.
Wills are administered under State law. A person should complete a Will in the State in which they live, or the State in which they own a majority of their real property.
In some States, if you marry or become divorced your Will may become invalid, and you will need to complete a new one.
If you die with a valid Will, your Executor will typically seek a Grant of Probate from the Supreme Court in that State. That Order from the Court essentially ratifies the Will as the formal statement of distribution on behalf of the Testator (the person who wrote the Will), and enables the Executor to get on with distributing the assets of the deceased's estate.
If you die without a valid Will you are termed "intestate". Because no Executor has been named, often a family member or friend will come forward to assist in the distribution of the deceased's assets. In this case, that person will seek Letters of Administration from the Court so they can "administer" the Estate. The separation of assets is usually conducted along a defined family tree.
If a person feels they have been excluded from a Will without having adequately been provided for, they can apply to the Court for an Order for Adequate Provision (often called a Family Provision Claim). Such applications are usually referred to as Will Challenges. There are certain categories of people who are deemed to be eligible beneficiaries, such groups include children, spouses (of which there can be more than one), and financial dependants, but can be much broader. If you wish to exclude one of these people from your Will, it is very import you do so specifically, and say why. Please note this does not stop them from mounting a Will Challenge, but does act as a defence to one if the reasoning is well articulated.
You should complete a new Will if your circumstances change, such as getting married or divorced, your Executor or primary beneficiary dies, or someone new comes into your life you want to leave a gift or provide for.
There are many options when preparing a Will. Gifts can be given to particular people, shared by value, item or percentage between categories of people (or charitable organisation), or passed into Trust to be held securely and distributed by a Trustee. Where a beneficiary is young (under a specified age to receive a gift), assets can be transferred to the control of a Trustee to administer on behalf of the beneficiary until they reach a nominated age, and are able to accept the gift. An example is a child attaining the age of 25 years. Where the beneficiary may have money problems, and a gift might be subsequently seized by creditors, the assets of an Estate can be transferred into a Testamentary Trust. An example might be where an adult child of the Testator has been left the house they are living in, but is a bankrupt. Under a normal Will the Trustee in Bankruptcy would be entitled to seize and sell the house to recover monies owed if the house were left directly to the beneficiary. If the house were passed into a Testamentary Trust, the beneficiary would retain use of the house for their lifetime, and then may pass to their own children.
Every person's situation is different, so we recommend you speak with us if you would like to prepare a Will that meets your needs. You can get this started by completing the basic information on our Will Drafter page, and we can adjust the other details from there.
