Every day people make a request for a simple Will. We often hear that people don’t want to overcomplicate things and want things to be easy for their loved ones.
The challenge of course is knowing when a simple Will is appropriate, and when it is not.
Some people have simple affairs and so a simple Will is appropriate. However:
- What if you have complicated affairs and a simple Will won’t suffice? Your Estate, and your executors, could face significant stress, costs and delays because you failed to implement a Will that was appropriate for your circumstances. You need to have a solution in place to address the challenges, which can be faced by your loved ones after your passing.
- What if you think you have complicated affairs and have been sold a complex estate plan when in reality you just need a simple Will.
How would you know what type of Will you need?
Do you need a simple Will or a robust estate plan incorporating a Will, which is a little more involved?
Below are some of the questions we ask when thinking about what type of Will someone will need.
- If you answer “yes” to less than 5 of these questions, then a simple Will may be the way to go.
- If you answer “yes” to more than 5 of these questions you need individualised estate planning advice. The benefits you receive from the advice will far outweigh the fees of the advice and will ultimately go on to benefit your loved ones.
- If you answer “yes” to at least 10 of these questions you definitely need a comprehensive estate plan.
Questions to consider when making a Will
- Do you have any assets in another jurisdiction (ie Australia and another country? If yes, you may need an international Will)
- If you are in a relationship, have either of you or your spouse previously been married?
- If you are in a relationship, do you plan on getting married? If yes, you may need a contemplation of marriage clause in your Will to prohibit it from being revoked once you marry.
- Are you in a same sex relationship?
- Are you in a short-term relationship but intend to leave that person out of your Will?
- Do you or your spouse have children from a previous relationship? If yes, they could make a claim against your estate if you fail to make adequate provision for them.
- Do your Executors live overseas?
- Do you plan to appoint more than 1 Executor (this person administers your estate). If yes, how will decisions be made – unanimously or by a majority?
- Do any of the beneficiaries of your estate live overseas? If yes, they could be Non-Resident Beneficiaries for tax purposes
- Do you intend leaving real estate to a beneficiary who is not a citizen of Australia? If yes, then it’s important you know about the Foreign Investment Review Board rules and regulations.
- Do you intend to leave specific assets to specific beneficiaries?
- Do you intend to give a beneficiary an option to buy an asset from your estate – say for example a house?
- Do you want to give someone the right to live in your house, however you don’t want them to ultimately inherit that house? (for example, you want your partner to be able to live there, but you want your children to ultimately receive the property)
- Do you intend to leave a person out of your Will?
- Do you intend to leave a person a share less than the others (ie a child gets less than the others?)
- Is a beneficiary bankrupt (or going through bankruptcy), a spendthrift (wastes money), about to be divorced, is divorced or affected by drugs &/or alcohol?
- Does a beneficiary receive a Centrelink pension? – The receipt of an inheritance can affect the beneficiary’s entitlement.
- Are any of your beneficiaries subject to a Special Disability Trust?
- Is a beneficiary a professional (such as a doctor or lawyer) or a business owner? – Generally, these beneficiaries won’t want to take an inheritance in their own name
- If you have superannuation, are some of your children under 18? (adult children get taxed on superannuation entitlements paid to them)
- Do you have a Self-Managed Superannuation Fund (super sits outside your estate)
- Do you intend to leave your assets in your SMSF to specific beneficiaries?
- Do you wish to create a trust under your Will to protect your beneficiaries?
- Do you have a Family Trust (a family trust sits outside your Will and a Will generally does not apply to a family trust)
- Do you have a Testamentary Trust which you are the beneficiary of and which you control?
- Do you own assets with another family member (not your spouse)
- Do you have a business that you run as a sole trader? Can the business continue following your passing and who is to take control?
- Have you made gifts/loans to your children during your lifetime and want these taken into account in your Will?
- Do you own an interest in a business with another person?
- Have you suffered from incapacity/ mental illness during your life? (your Will could be attacked on this basis)
- Is someone strongly directing you to make a Will? Your Will could be challenged on the basis of duress/undue influence.
- Is you and your partner’s net wealth (taking into account your superannuation/life insurance/personal assets) greater than $3m? We generally recommend that clients consider testamentary trust Wills.
- Do you own assets on trust for someone or does someone own assets on trust for you?
- Do you plan to leave someone your assets that are subject to a loan/mortgage?
- Are any of your beneficiaries stepchildren or adopted children?
- Do you plan to set up an education fund for your beneficiaries?
- Are you owed money by any of your beneficiaries, or family trusts (such as unpaid present entitlements, loan accounts) and do you want that money repaid to your estate on your passing?
- If you have children under 18 years, do you want to nominate someone to be their guardian? Do you want to make sure their guardian is not out of pocket?
- Do you intend appointing an executor who will not benefit from your estate? (for example, friend, brother, sister, parent etc)? – If yes, do you want to leave them an amount of commission as a “thank you” for acting as your executor?
- Do you intend to donate some or all of your estate funds to charity?
Having considered the above does your “simple” Will still look simple?
If not, then give us a call to discuss what type of Estate Planning you need.
Next Steps
We make the complex in Estate Planning simple.
We have 2 Accredited Estate Planning Specialists and a team that can handle simple Wills and complex estate planning.
Call us for a no obligation chat to discuss what Estate Plan you need on 1300 363 314. Ask for one of our Estate Planning Specialists – Naomi Guyett or Bianca Apollonio.
