We are professional wealth advisers and we have prepared hundreds of advice documents, the estate plan is a crucial part of every wealth plan and it is a very worthy investment so we always advise clients to prepare their Will with a lawyer

Why? Because estate planning is just not that simple.

  • There are assets that are part of your estate and others that are not,
  • There are specific requirements as to what must be included in a Will,
  • The Will is invalid and will not be accepted if it is not executed properly.
  • Many people don’t realise the detail required to ensure that your wishes are upheld, the law is rarely in step with common sense and these days it is rare that there are no complications that need advice i.e. previous marriages, alienated children, trusts, businesses and joint assets to name a few.
  • If the problems are not fixed before you pass away, then dealing with your estate after your death is likely to be much more complicated and expensive for the people you leave behind.

 

Basically the costs you may save by completing a $50 Will Kit are often just incurred by your loved ones when you pass away.

In fact engaging a lawyer to advise on and prepare your Will is likely to turn out cheaper for you (and your loved ones) in the long-run.

 

To simplify the discussion there is a Will and a couple of powers of attorney documents to complete, we see this mostly costing a couple less than $2,000.

This is investment in this very important document makes sense when you consider ;

  • You spend thousands with banks and financial advisers.
  • You pay tens of thousands in insurance premiums to protect your assets.

 

So why wont popping down to the Post Office to pick up a ‘Will Kit’ be good enough, it’s much simpler and cheaper than seeing a lawyer, what’s the problem?

  1. It’s a legal document and it will be invalid if not completed correctly.
  2. So a mistake will mean the court will need to make extra investigations to make sure it was really you. This costs a lot of time and money.
  3. If part of your estate becomes ‘intestate’ it will cost your beneficiaries several thousand dollars more in fees.

This list of common issues comes from our lawyers, Andreyev Lawyers;

  • If the Will Kit form is not completed, and some important sections are left blank, this happens as the correct answers to even the most simple questions on a Will Kit are not obvious to most people.
  • You have not signed the Will correctly, 2 witnesses need to attest that it was actually you who signed the Will.
  • You try to give away assets in your Will that you do not actually own e.g.  many people hold assets in various different trusts and funds i.e. you can’t give away assets that you do not hold in your own personal name.
  • Your Will doesn’t end up doing what you intended it to as it is not written broadly enough. You make a Will at a point in time, but things keep changing from that time onwards. You may sell your car, move houses, have more kids, get divorced. Not only that, your beneficiaries may die, get married or divorced, move address.
  • There is no ‘adjustment’ clause in your Will that can help minimise stamp duty, taxes and transfer fees (and maximise your estate) when you pass away.
  • You do not take into account tricky family situations (e.g. blended families or estranged children). This invariably results in someone getting included when they shouldn’t be. Someone being excluded when you meant them to be included. Everyone getting upset and challenging your Will.
  • Your pen runs out half-way through making your Will and you have to complete the rest of the form or sign it using a different pen. When you die, the Probate Registry will ask questions about this and require an affidavit from the witnesses to your Will (yes, you got witnesses, didn’t you!) to confirm that no one changed the contents of the Will after you signed it. This is a problem if the witnesses to your Will have since died or your Executor cannot find them, (or you simply didn’t bother getting your Will properly witnessed).
  • The Will is creased, stapled or accidentally ripped when you took it out of the Will Kit booklet. The Executor will need to explain any damage to the Will to the Probate Registry. This will cost hundreds of dollars (if not thousands). We’re not joking.
  • You throw away the Will Kit booklet once you have completed the Will (as the booklet tells you it is OK to do this), but the Probate Registry later asks what happened to the booklet.

They advise that these are just some of the problems seen over time in getting Will Kit Wills through the Probate Registry and the assets into the hands of beneficiaries. There are many more things that can (and do!) go wrong.

  • Furthermore if you pay nothing and get a trusted family or friend wrote the Will out for you, but your signature and handwriting where you dated the Will do not match the handwriting in the rest of the document. Again, the Probate Registry will ask questions about this and require an affidavit from the witnesses to your Will. Once again, more fees on lawyers explaining things to the Probate Registry.

So in our opinion you should

  1. engage and use a professional lawyer,
  2. consider whether the perceived cost saving is worth the significant risk to your estate beneficiaries as in many cases there will not be a cost saving and a lot of time and money will be wasted or worse still assets will be lost.

Please call if you would like to discuss this further. PH: (02) 9816 3444

 

 

General Advice warning: the information in this article is general in nature, it is not advice specific to your needs. If you want to act upon the information in this article then you should seek advice from a qualified professional. VJC and VJC WM accepts no liability to any party for acting from this information unless they have sought advice in a formal engagement for this purpose