For the majority of people, making a Will is simple and inexpensive.*
For a simple standard Will you will need two appointments. The first primary appointment allows your solicitor to take your Will instructions and discuss your needs and requirements. The secondary appointment (usually one week later) allows your solicitor to go through your drafted Will with you, explain it to you and make any changes required before signing off on it.
Before going to your first appointment you should think about the following:
Who will be your executor?
An executor is the person who administers your estate – they will collect in the assets, obtain a Grant of Probate if required, pay the debts of your estate and distribute your estate. However, the executor will also have the power to make other decisions in relation to your estate (at their discretion), so you should choose someone you trust.You can have one or more people as your executor. You should speak to these people and satisfy yourself that they will be agreeable to being your executors prior to appointing them as your executors.
Who will be the guardian of your minor children?
If you have children under 18 years of age you should think about who you would like to look after your children in the event that both you and your spouse or partner pass away (also referred to as ‘guardian of minor children’). Ideally you should think about how the arrangement would work. For example, if you choose someone who lives interstate as your guardian of minor children, will your children move interstate to live or will the guardian move back to South Australia to live?
Are you intending to get married?
This is important for your solicitor to know so that he or she can draft a Will which will not be revoked (cancelled) by your marriage.
How do you wish for your remains to be dealt with?
In ordinary circumstances your loved ones may not look at your Will until after they have dealt with your funeral arrangements. Now is a good time to start talking to your loved ones about how you wish for your remains to be dealt with.
What assets you have?
Do you have a house?
Is your house held as a joint tenancy or tenancy in common? If your house is held as a joint tenancy, regardless of what is written in your Will, on the death of one joint tenant the surviving joint tenant automatically gets the whole property according to the laws of survivorship.
Note: This applies to all jointly held property including bank accounts, cars etc.
Do you have any superannuation?
If you have superannuation it is important to know whether you have a binding or non-binding nomination. If you have a non-binding nomination then the trustee of your superannuation company has the discretion to determine who receives your superannuation. If you have a binding nomination you can decide who receives your superannuation. It is important to note that some superannuation companies in South Australia do not allow you to have a binding nomination. You should check with your superannuation fund prior to your first appointment with your solicitor. If you can, you should try to ensure that your superannuation goes to a dependent, being your spouse or partner or children under 18 years of age. Otherwise there are serious taxation consequences.
Do you have a Family Trust?
If so, you should bring your Family Trust Deed with you to your appointment.
Are you in a Company or Partnership?
If so, you should bring any documents which set up your company or partnership with you to your appointment.
How will your assets to be distributed?
Do you want to give your entire estate to your spouse? Do you want to give different percentages of your estate to different family members? Do you want to give lump sum figures to each of your grandchildren? Do you want to set up a trust for taxation purposes?
It is important to have an idea of what you would like prior to seeing your solicitor. It is also important that you think about all of the people who are entitled to inherit from you and make provisions accordingly. If you do not, they can make a claim under the Inheritance (Family Provision) Act 1972 (SA). If they have a fair claim, the costs for making such a claim will come out of your estate.
- I do not recommend that you use a “Do it Yourself Will” kit as it is easy for you to complete it incorrectly. This may make obtaining a Grant of Probate much more difficult and expensive for your loved ones.
- Some people will have special requirements for their Wills which will increase the price of their Will.