Wills

A will is a legal document which:

• states who will receive your property when you die;
• appoints the person(s) you want to be your executor(s);
• appoints the person(s) you want to be the guardian of minor children;
• sets out your wishes for disposal of your body.

Your will should be stored in a safe place and you should ensure that your executor knows where to find it.  If your will cannot be found, this will cause problems and may prevent your wishes from being known.  You should never remove the staple from your original will or attach anything to it.

You can choose to leave your assets to whoever you like, but the law requires you to provide adequately for your spouse, defacto spouse, children, and any other relevant dependants.  If you do not do so, any eligible person may bring a claim against your estate.

You can change your will at any time.  You should change your will when your circumstances change – e.g. if you divorce or remarry, if one of your beneficiaries dies, if you have children or if your executor dies.  It is usually safest to make a whole new will to ensure that your will remains valid – you cannot simply cross out something and write something different.

Marriage will generally invalidate any will you have previously made.  There are some exceptions your solicitor can advise you about.  If you divorce, any gifts made under your will to your former spouse are cancelled, again there are some exceptions your solicitor can advise you about.

You should always make a new will if you marry, divorce, separate from your spouse or start a new defacto relationship.

If you die without a will (i.e. you “die intestate”) your property and possessions will be distributed in accordance with a standard formula pursuant to the Administration and Probate Act 1919 (SA).

Generally, this will result in your assets passing to your spouse and/or children. This can be a problem, however, if you have a legal spouse and a defacto spouse i.e. you are separated (but not divorced) and you have a new defacto partner.

Problems may also arise in some estates where there is a spouse and children.  For example, in estates valued over $100,000 – the spouse is entitled to the first $100,000, half of the balance of the estate, and the personal belongings of the deceased.  This could result in a spouse being unable to remain in the family home, causing further hardship and emotional strain during an already harrowing time following your death.

It is a good idea to involve your solicitor whenever you want to make changes to your will or make a new will.  Your solicitor can:

• Make sure your will is valid and properly drafted, signed and witnessed.
• Make sure you’ve expressed your wishes in the best possible way.
• Advise you on your rights and obligations to your spouse or defacto partner, children and other dependents.
• Advise you on the role of your executor and help you choose the best person.
• Advise you regarding superannuation after death.
• Advise you on making an Enduring Power of Attorney.
• Advise you on making an Advance Care Directive.