What can I expect when drafting my will?
Your initial consultation with us is usually over the phone or by video call. We find this is the most effective use of your time, mainly because we will have several questions for you to consider, or find the answers to, before we can proceed further with the drafting process. Some examples of those questions are provided below.
If you have an existing will already we would ask you to send this to us ahead of the first consultation. This usually provides us with some of the basic information that we need, such as names, addresses, and a brief understanding of your family structure and existing assets.
Following the initial consultation, there will usually be several emails going back and forth as you provide us with any additional information we need. We then provide the draft version of the will to you by email for you to review. We can then finalise any changes required before forwarding the final version.
After the will has been finalised, it is ready to be signed and witnessed. We are happy to complete this with you at one of our offices, or if you live locally around Hornsby, we can come to you. If an additional signing session is needed, for example for attorneys or guardians who cannot attend your signing, the fee is $165 including GST. This is rarely required.
Note: a will can be witnessed by people other than your solicitor, so if it is difficult for us to meet in person, please chat to us about other options available to you. However, if we are preparing powers of attorney or enduring guardianship documents, these must be explained to you and your attorney or guardian by a solicitor.
What do I need to draft a will?
You will need the following information:
- A list of assets including property, bank accounts, superannuation, shares or any other investments.
- The names and addresses of any beneficiaries, executors, trustees or guardians named in the will. These terms are explained further below.
Who can write a will?
You must be over the age of 18 years, and you must have “testamentary capacity”. Testamentary capacity refers to the mental capacity required to understand what a will is for, and what the effect of the will is. For example, if a person has dementia, it may impact their capacity to understand what a will is for. If for any reason there is some doubt about a client’s capacity, we will usually request that you consult your doctor, and have them sign a letter which confirms that you do have the necessary capacity in their medical opinion.
Terminology explained
What is a beneficiary?
A beneficiary is anybody who stands to inherit something under your will. So if you leave something to them (property, money, gifts of any kind and so on) they are considered a beneficiary. It’s worth noting that beneficiaries are not allowed to witness your will.
What is an executor?
The executor is the person, or people, responsible for carrying out your wishes. Firstly they will gather all the assets up and work out exactly what makes up the estate. They then prepare the probate documents, and send an application for probate to the Supreme Court of NSW. Once probate is granted (which basically means the court has approved all the documents), the executor can start distributing items to the beneficiaries.
Give careful consideration to who you appoint as your executor. Most people will choose a family member or close friend, but keep in mind that there is a fair amount of work involved in executing an estate. So whilst it is quite complimentary to nominate someone for this role, because it shows you trust them, it can be quite an involved task. A nominated executor can decline the role by renouncing it. If no other executor is named or able to act, someone else, such as a beneficiary or NSW Trustee and Guardian, can apply to the court to administer the estate instead. An executor can also keep the role and engage a solicitor to do the work.
What is a guardian?
If you have any children or other dependants who require care, you should nominate a guardian to take responsibility for them after you are gone. If nominating a guardian, you should discuss this role with them so they are aware of their potential responsibilities in caring for your children. You should also consider what financial support you are putting in place for them to care for your dependants. This is where the role of the trustee can become very important.
What is a trustee?
A trustee is a person who takes responsibility for a certain amount of money or assets, but they are simply looking after those assets as per your instruction, and are holding them on someone else’s behalf. For example, if your children were left in the care of another person, you would usually nominate a trustee to manage the money or investments on behalf of the children until they become adults. The trustee may also be the guardian of the children, or you may nominate somebody else to hold the money. There are some strict rules concerning what a trustee can and can’t do with the money, and they are responsible for ensuring they follow your instructions and comply with the Trustee Act 1925 (NSW).
What happens if I die without a will?
When this happens, a person is said to have “died intestate”. When a person dies intestate, their assets are distributed to their family members in a very specific way, and this becomes particularly complicated if you have children from a previous relationship. NSW Trustee and Guardian has a good information page which explains how your assets will be divided under these circumstances.
This content is intended as information only, and does not constitute legal advice. Your use of this website does not create a solicitor and client relationship, and as such we recommend you seek independent legal advice, specific to your circumstances, prior to acting or relying on this content.