BSS Personal Legal Services: Wills & Estates











LEVEL 7, NO.1 CHANDOS ST ST LEONARDS NSW 2065 TELEPHONE: (02) 9439 5299 FAX: (02) 9439 6756

BSS Personal Legal Services:

WILLS

We find that perhaps a majority of people either do not have a will, or if they do it is probably well out of date. Is this because making a will reminds us that we are not immortal?

You need a will if you want to make sure that your assets will go as you want, and if you want someone you have chosen to make sure that happens !

You should review your will every few years, and also on any major change in your life - such as marriage or separation, having children, buying or selling a home.

As a general rule, it is important to prepare each will as though it may last many years and as though it will be your final will. As we said earlier, it well may end up lasting longer than expected.

The appointment of the right executors is important. Ideally, executors should be:

• more than one in number (over many years, named executors may die, move out of the jurisdiction or otherwise become unavailable to act);

• living in the same town or city as you (and likely to remain so);

• close enough to you to know the type of decisions you might prefer (in allocating assets to a particular beneficiary's share for instance); and

• younger than you (where practicable).

It is important to understand that real estate held by a person jointly with another, as joint tenant, will pass automatically to the other person on the death of the former and will not be governed by the will. It may be necessary to check the manner in which title to real property is held. This principle will also usually apply to joint bank accounts.

Similarly, insurance and superannuation entitlements which name a particular beneficiary may not be governed by the will. It will usually be necessary to check the nature of such entitlements.

Assets held by a trust may also not be affected by the terms of a will.

Because it may be many years before the will becomes effective, it is often a good idea to divide your estate between named beneficiaries in percentages, rather than by specific gifts. A relative might be rather hurt if you left them your Holden car, but you didn't own one when you died!. This approach also avoids problems which may be associated with inflation (which may erode the value of a gift in a specific amount) or with taxation, including Capital Gains Tax.

Again, because it may be a while before the will is effective, don't be too short-sighted. It is always possible that named beneficiaries will die before you. For this reason, including additional gifts which operate if this occurs is usually a good idea. A testator leaving everything to be divided between his or her children might, for instance, also provide an alternative gift to nieces and nephews (or a favourite charity) in case the first gift fails.

The above considerations are general only and are directed more at an average situation and one in which no significant taxation considerations or other complications arise.

Our wills and probate booklet includes a more detailed list of considerations.

Any questions? Contact us by email (lawyer@bullson.com.au), fax (9439 6756) or phone (9439 5299).