What is a Will and Why Do We Need One?

Jack Prot

About Wills

No one wants to think of the possibility of death – that is, his/her own death. But it is important to make sure that your family and other loved ones are provided for if anything happens to you. If you don’t have a will then now is the time to give it serious thought. If you have made a will and you want to make amendments then do so now because it will be too late to make those changes if something should happen to you.

Always make sure that your wishes are properly documented because the court will look at your will as the final proof of your wishes regarding your assets on your death. Remember – if you don’t have a written will the courts will assess what is to happen to your assets and they will order the disposal of your assets in the way they believe is best. The problem is that this may not be according to your wishes; so make sure you look seriously at the making of a will at the earliest.

What is a Will?

A will is a document containing your instructions and wishes as to how your property and assets are to be distributed after your death. Any person, of any age, should seriously consider a will at the earliest. A will should not only be for people who have reached an age where death is not far away. People die at all ages and a will is needed especially if you have assets and property to be allocated to those you wish to benefit.

A will is the expression of the person’s wishes concerning how their property is to be distributed. It is a written statement, signed in compliance with the various formalities covered by legislation. It is a legal document containing the names of the people you want to benefit, as well as details of your possessions at the date of your death. The people you want to benefit are called beneficiaries.

Your property or possessions will include everything you own, such as your home, land, vehicles, bank accounts, benefits of insurance policies, furniture, boat, investments such as shares, personal jewellery, artwork, and so on. A will is the only way you can ensure your assets will be distributed according to your wishes after your death.

What is a Valid Will?

A valid will is a will that is accepted by the court and put into effect by the court granting what is known as probate. Probate is approval or acceptance by the court of how your assets are to be dealt with.

A valid will must have the following features:

  • It must be in writing – handwritten, typed or printed.
  • It must be signed with your signature at the end of the document.
  • It must be witnessed by at least two other people present at the time of signing. They need to acknowledge they were present and must sign the will as witnesses in your presence. They don’t have to be together at the same time of signing.

If your will is not made in this manner then the court may not accept it and it would be unenforceable (the courts will not enforce it). The court has discretion to grant probate (probate is confirmation that the will is valid and accepted) and your possessions could be disposed of as if you hadn’t made a will at all. When the court exercises this discretion, it has to be satisfied that the document sets out clearly how you wanted your assets to be allocated or distributed.

About Completing a Will

Most people know that they need to put together a will sometime before they die. Unfortunately, the majority of people don’t have a will. They don’t think about writing up a will until they are past the age of 50.

Writing a will doesn’t need to be expensive. Once it is done you can rest easy, knowing that your wishes will be followed after your death. Most wills can be composed quite simply. Others are more complex and involve more people, substantial assets, and cash. These wills should be discussed with lawyers who specialise in this area.

While a will is not critical if you do not possess much (e.g. property for distributions), you may have personal items such as jewellery, manuscripts, or trophies that you want to be left to specific people. Having a will clarifies this and saves any arguments later on.

If your estate, possession and property are valuable, you should ensure that a will sets out your wishes and instructions clearly. It might be inconvenient for you to set up a Will while you are alive, but it could save arguments and fighting amongst your beneficiaries.

Why Make a Will?

If a person dies without making a will then the rules according to law will apply. If you die without a will the term is; you have died “intestate”. If you die intestate then the court rules on how things are done, how your property is distributed, and who the beneficiaries would be. It may not be according to your wishes, so dying intestate is not a good position to be in as far as your beneficiaries are concerned.

Because most of us don’t know when we are going to die, we should approach the drafting of a will as if we haven’t many days left on this earth. This is important because it saves arguments amongst family members and beneficiaries after your death.

The following are a few examples of what could happen if you died in testate. You may not be particularly happy about some of them.

  • If you die without spouse or children, but are survived by your parents, then your parents will generally receive all the assets of your estate.
  • If you die and are survived by a spouse, then the whole of your estate will generally pass to your spouse.
  • If you die and are survived by a spouse and children, the estate will most likely be divided between your spouse and children, as determined by the courts. The split of your estate between your spouse and children can cause problems for your spouse, who may have to sell a family home in order to pay out the shares to the children.
  • If you die without spouse, children or parents, but are survived by brothers and sisters, then your estate will be divided equally amongst those brothers and sisters.

There are a number of reasons why you should make a will as soon as you can.

These are:

  • To protect your loved ones.
  • Making a will is one of the only ways to be certain that your lifetime’s work and assets, built up over the years, are passed on to the people you want. It provides security for your family and those you are responsible for. Most of your life would be spent building up your assets. These may consist of home, car, insurance policies and other investments, etc. You will want those assets to go to the people you choose, rather than to someone else.
  • Smooth transfer of assets.
  • Having a will enables your assets to be transferred smoothly on your death. You need to prepare a detailed list of your assets, as well as your personal goals before putting your plan in place. Your ultimate plan will involve investment advice and planning, so that there is a provision for the orderly transfer of your assets.
  • To secure your children’s future.
  • If you have children (under adult age), you may wish to nominate guardians and make arrangements for their upkeep and education.
  • For a second marriage.
  • If you are currently in your second marriage, you need a will to protect the members of your new family. A marriage generally invalidates any will made prior to the date of marriage, so unless you have a new will including reference to your new family, your new family may not get the protection you want.
  • De facto relationship.

If you die without a Will your partner could stand to lose assets and mementos that rightly belong to him/her. A de facto spouse does not have an automatic entitlement to your estate if you die without a will. Strangely enough, a divorced former spouse can still inherit your estate because a divorce does not automatically cancel a will.

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