Legally, you do not need a lawyer to make a Will. Online resources offer “free” or cheap Wills, and websites sell Do-It-Yourself Will kits that can be downloaded or delivered, which are typically inexpensive.
However, while making a Will is possible without a lawyer, consider whether it is a good idea. A Will is one of the most important legal documents you will need to prepare and there are several reasons why saving a few dollars in the short term could turn out to be a costly exercise. Making a Will without the guidance and expertise of a professional could result in your testamentary wishes not ultimately delivering what you intend.
Why you Need a Valid Will
The purpose of writing a Will is to direct where your assets go after you die, and to appoint somebody you trust to manage your affairs according to your instructions.
If you have a valid Will your executor applies for probate and distributes your estate according to the terms of your Will. Probate may not be required in all cases, for example, if your affairs are simple and your main asset is a property held jointly with your spouse. However, whether or not probate is needed, if you do not have a valid Will, the distribution of your assets and finalisation of your affairs will likely be delayed. Typically, your family will also face increased legal and court costs, perhaps resulting in financial hardship and emotional anguish.
While you may think that your circumstances are straightforward, making an effective Will is seldom a one-size-fits-all approach. Following are just some questions you might consider before going down the DIY path of making a Will.
Where do you Propose Storing your Will?
One of the benefits of having a lawyer prepare your Will is that they usually hold the original Will in safe custody and provide you with signed copies for your records.
Even if you decide to keep your original Will, your lawyer will keep records and can take certified copies of the Will which can be useful if you subsequently lose the original. In such cases, your family can ask the court to look at the copy of the Will and allow the wishes in that Will to stand.
If the original Will is lost or has been destroyed and there are no copies, the family may be put to the expensive task of applying to the court for a grant of administration which is generally a more complex way of dealing with an estate than the usual grant of probate.
What are some of the Technicalities?
For a Will to be valid, certain legal formalities must be met. If the Will is not correctly signed or witnessed, there is a risk that it may be invalid or contested after you die.
Writing on your Will after it is made, stapling documents to it, or making any changes are all things that can raise requisitions or invalidate the Will and render it partially or completely ineffective.
A Will that does not effectively deal with all of your assets or a Will that has ambiguous language can open the doorway to all sorts of uncertainties and disputes.
If you have minor children or vulnerable beneficiaries, they might need special consideration and a lawyer might address these matters by way of a testamentary trust.
A lawyer will consider your circumstances, family structure and financial position and take steps, if necessary, to help minimise potential disputes after you die.
Are you Part of a Blended Family?
When making a Will, you should consider how you wish to provide for any children from a previous relationship or how your current partner may wish to provide for their children. There is no one-fit solution when it comes to estate planning for the blended family. The dynamics and needs within families evolve and assets can change from year to year. However, by identifying the potential issues that are unique to your family, and considering some options to address these, an effective Will can be crafted. The important thing is to discuss your circumstances and objectives with your lawyer so that your wishes can be properly set out in your Will and other estate planning documents.
Do you Own a Business?
Owning business interests adds some complexity to making a Will. You will need to ensure that those interests are adequately dealt with, whether you wish to hand the business down after you die or want the business sold or dissolved. You will need an executor to manage this process which can be set out in the provisions of your Will.
Lawyers are Trained to Write Valid Wills
When preparing a Will, an experienced lawyer should:
- take into account the strict requirements for a Will to be considered valid by the court
- consider your particular situation and the specific elements you need included in your Will
- ensure your Will is clear and unambiguous
- remind you of the need to review your Will and overall estate plan on an ongoing basis
Do-it-yourself Will kits do not include the tailored legal advice that typically goes with the preparation of a valid Will by a legal professional. An experienced lawyer can also help plan other aspects of your estate such as whether you should consider trusts, whether you need a business succession plan, whether an elderly relative needs to remain in your home after you are gone, and a myriad of other matters unique to your circumstances.
This is general information only and you should obtain professional advice relevant to your circumstances. If you or someone you know wants more information or needs help or advice, please call 02 9150 6991 or email [email protected].