Legal – What is a will?

WHAT IS A WILL?

Your Will is probably one of the most important legal documents you will ever sign. Put simply, your Will states what you want to happen to your assets when you pass on.With proper estate planning, OMB Solicitors will ensure that your right assets go to the right people at the right time.

A Will must appoint somebody, called your executor, to carry out your wishes. They effectively step into your shoes when you pass and distribute your assets to the beneficiaries. Your Will must also be in writing and signed in the presence of two independent adult witnesses. Those witnesses must not be beneficiaries named in the Will. Although that sounds fairly straightforward, if your Will is not prepared correctly it risks being invalid and your wishes not upheld. Whether it be your first Will, or it's time to review your existing Will, we recommend you update your Will at least every three years or whenever a major event occurs in your life, such as:

• You have married or divorced since making your last Will • You have entered into a de-facto relationship • A beneficiary named in your Will has died • If one or all of your executors have died or

are otherwise unable to act, say because of dementia • You have had children or grandchildren since making your last Will • You wish to appoint a guardian of your children • Your assets have increased or decreased significantly, or • You wish to leave a specific asset to a specific person If a person dies either without a Will or the Will is deemed invalid, they are known to die intestate. The ramifications of dying intestate can be very time-consuming and stressful for your loved ones and is almost always legally more expensive if that person had a valid Will. What is more, their assets will be distributed in accordance with estate laws and not their wishes or their estate administered by the Public Trustee. For example, a substantial part of one's estate could be transferred to an estranged spouse

if a divorce order was not obtained following separation. Such an unwanted outcome is easily avoided by preparing even the simplest of wills. Then there are more complex type wills such as those incorporating testamentary trusts. Testamentary trust wills are used for a variety of reasons but essentially, they are to protect the will maker's beneficiaries from creditors and predators and their in-laws or some may see them as outlaws. Testamentary trust wills have significant advantages over simple wills in that they are used for: • Minimising tax - income tax and capital gains tax • Protecting spendthrift beneficiaries from themselves where they suffer from various addictions including drugs, alcohol, gambling or all of the above • Keeping an inheritance out of the reach of the Family Law Court where the beneficiary is involved in a family law property dispute • Protecting inheritances from a beneficiary’s creditors • Caring for children and the mentally disabled • Avoiding an unintended loss by a beneficiary of their Govern-ment sourced pension or other benefit (although there is limited scope for this). This underlines the importance of obtaining proper legal advice from an estate planning specialist like Richard Dawson at OMB Solicitors to ensure your hard-earned assets go to the right people at the right time.

RICHARD DAWSON

PARTNER AT OMB SOLICITORS

Wills Powers of Attorney Estate Planning Estate Administration Self Managed Superannuation Funds Commercial and Residential Conveyancing

Lvl 1/9 Seabank Ln, Southport QLD 4215 P (07) 5555 0000 E info@omb.com.au www.omb.com.au