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BANKSIA GROVE GAZETTE WHAT IS A WILL AND WHY SHOULD I HAVE ONE A will is a written legal document which is made by a person (the testator) and sets out the distribution of that person’s property after they die. While many people believe making a will is too costly and a waste of money, the reality is that if a person dies without a will (intestate) the cost of administering the deceased’s estate can be substantially higher and the estate will be divided according to a statutory formula which may not be inline with the deceased’s wishes. Who should make a will and why Every adult should have a will as it aids in the administration of their estate once deceased. While many people would prefer not to think about what would happen if they were to die, it is important to ensure there are instructions for distribution of property amongst those a deceased leaves behind. By making a will, the testator decides who will be the legal personal representative after the testator’s death (the executor) and who will receive their property (the beneficiaries). Won’t my spouse and children receive all my property anyway While this is largely true, in the absence of a will there are certain legal rules as to who benefits from a deceased’s estate and these may not be consistent with the intentions the deceased had for distribution of their estate. Dying intestate can also result in delay of administration of the estate, conflict as to who is responsible for administering the estate and increased costs in administering the estate. Who can I appoint as my executor The executor under a will may be one or more people or a trustee company. An executor should be a person who, ideally, can cooperate with the beneficiaries and will not favour one beneficiary over another. If there is no person available to be appointed as executor then it may be suitable for a trustee company or the NSW Trustee & Guardian to be appointed. The benefit of not appointing a person as executor is that a trustee company or the NSW Trustee & Guardian may endure indefinitely, however the costs associated with such an appointment can be quite significant. 6
Banksia Grove Gazette July 2013 | Volume 3| Issue 7 When should I change my will A person should review his or her will if any of the following circumstances occur: 1. Marriage; 2. Divorce; 3. The executor dies or becomes inappropriate; 4. The testator (or a beneficiary) changes his or her name; 5. Any of the beneficiaries die; 6. Birth of a child or grandchild; 7. The assets for distribution change. This article was written by Robert Lindsay who is a partner at Mullane & Lindsay. Robert practices extensively in property law, estate planning and contested wills and other commercial matters. We are available for consultation at our Newcastle office, located at Level 3, 418 Hunter Street, Newcastle, at any time during business hours. We are also available by appointment at our Tea Gardens and Gwandalan offices. If more information, phone us on (02) 4928 7300 or visit www.mullanelindsay.com.au 7
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