With a variety of cheap DIY Will kits now freely available it can be tempting to create your own Will, but what does the law dictate, and is DIY really your best option or should you see a lawyer?
Essentially, anyone can write their own Will and a DIY Will kit can certainly help you with this. However, a DIY Will kit attempts to simplify Will creation and, in the process, can leave those in complex situations or without the appropriate skills to draft a complex estate document exposed to potentially costly mistakes.
In Queensland, the Succession Act 1981 (Qld) outlines the requirements for making a Will, including how the Will should be written, and how it should be signed. These and other requirements are summed up in The Queensland Law Handbook.
If the requirements of the Act are not met, a Will may be deemed invalid, and without a valid Will, a person is deemed to have died intestate (or without a Will). When a person dies intestate a standard formula is applied to estate distribution. In Queensland this formula is as follows:
- The first $150,000, plus your personal effects, and one half or one third of the rest of your estate are left to your spouse
- The remainder of your estate is left to your children and grandchildren (issue)
- Where there is no spouse or issue the diagram below compiled by The Public Trustee of Queensland outlines the order of estate distribution
Visiting a lawyer to complete your Will can ensure that your Will is in the correct form, address your specific circumstances and comply with the Act. This is particularly important in complex situations such as:
- The operation of a company or family trust
- Blended families
- The presence of dependents who are non-relatives or stepchildren
- Incomplete spousal separation
- The operation of a self-managed superannuation fund (SMSF)
- Joint property ownership
Engaging a lawyer can also assist you to navigate assets that may not form part of your estate. These assets can include:
- Superannuation fund assets which can be left to a designated beneficiary, or generally default to a spouse or children
- Life insurance policy proceeds
- Company or unit trust-owned assets, even if these entities are controlled by you
It is also recommended that you review your will every 12 months, or more frequently in line with changes to your relationship, a person named in your will or financial situation. A lawyer can guide you through this review process as well as providing other advice regarding estate planning.
Take the stress out of preparing your Will and get in touch with one of our Wills and Estates lawyers.