the three essentials and four imperatives to make a … · if you have infant children, it is wise...

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THE THREE ESSENTIALSAND FOUR IMPERATIVES

TO MAKE A WILL

A legal Will is a comprehensive document that describes how you want your assets distributed. It is very important that your Will is kept up-to-date. In the event you do not have an up-to-date Will at the time of your death, your estate could be distributed accord-ing to an outdated Will and your wishes may not be carried out. In the event you do not have a Will at the time of your death your Estate will be distributed in accordance with the Succession Act, whereby the Court appoints an Administrator. Your Estate will incur additional costs for this service, reducing the amount to be distributed to your beneficiaries.

Access Legal NQ can walk you through the process of making a Will for the first time or revising your current Will to reflect your present wishes. Take the time to read the “The 3 Essentials and 4 Imperatives to Making a Will” (located on our website, under Wills and Estate Planning) then contact our office to make an appoint-ment to see one of our Solicitors to document your wishes.


Why Do I Need A Will?

1st Essential

You will need to decide who you will leave your assets to. Common practice is to provide for the different levels of beneficiaries similar to the following;

Level 1 – spouse

Level 2 – children in equal shares

Level 3 – children of children stand in their parents shoes

Level 4 – gift provided to other chosen beneficiaries

Queensland law recognises the freedom of a Will maker to leave their assets to the beneficiary as they choose. Queensland law also states that there is a duty on a Will maker to adequately provide for those who might reasonably expect to benefit from the estate. When a Will does not provide to a beneficiary who might expect to reasonably expect benefit in accordance to Queensland law, this can bring rise to a Family Provision (Court) application, following your death in the settling of your estate.


Beneficiaries

A Will made by a person when they were not in a domestic relationship will be cancelled upon their marriage unless it is expressly made in contemplation of that marriage. If this has not been considered this could bring rise to a challenge in Court regarding the assets in the Estate.

It is important to take a pending marriage into consider-ation to make sure your intentions for providing to your fiancé and/or other beneficiaries are carried out.

The effect of a divorce will automatically make a Will invalid. We advise that upon a divorce you make a new will that will be valid.


2nd Essential

3rd Essential

An Executor is the person or persons who will be responsible for administering your estate.

In most instances, the executor is someone you know well and who knows your circumstances, your estate and your beneficiaries well. Typically the Executor is as follows;

Level 1 – spouse Level 2 – children (over the age of 18); or close family or friends.

Marriage and Divorce

Executors

1st Imperative

If you have infant children, it is wise to appoint a guardian of those infant children in your Will. If there is a “power of advancement”, estate monies can be used to contribute to the expenses of raising the child, but will not fund a bigger car, or house extension. A “guardian gift” may need to be for instance considered.

Guardian Appointment

2nd Imperative

Your Will should contain a broad power for the Executors /Trustee to apply monies to minor beneficia-ries (under 18 years of age). For example; for the education, maintenance and advancement in life of minor beneficiaries.

Power of Advancement



4th Imperative

Will Promises or Agreements

3rd Imperative

If you have an estate in excess of two million dollars, there are benefits in considering giving your property to be held in trust for your beneficiaries. Trusts under your Will can be created which are called Testamentary Trusts, these Trusts have certain tax and asset protection benefits that are worth considering.

Giving Property on Trust

In the event you have entered into an agreement (whether the agreement was done verbally or in writing) and in this agreement you have promised to give certain things to particular people upon your death, you need to consider how the agreement may affect the following;

Binding financial agreements; Will contracts; Buy/sell agreements in relation to business interests; Mutual Wills; Will promises (even oral promises).

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