Crucial Roles in Wills

Crucial Roles in Wills for Estate Planning

A Will is a written document which declares a person’s testamentary intentions (how you would like your estate to be distributed on your death).

For a Will to be valid in Victoria it must meet a number of legal requirements.

Other key components of a Will include:

  • Revocation of prior Wills;
  • Application of the Will – that is which jurisdictions it may apply to, eg all Australian assets or worldwide assets;
  • Appointment of an executor;
  • Funeral directions; and
  • Directions to the executor regarding the distribution of your estate (your testamentary intentions).

Key Estate Planning Terms

Testator – the person making the testamentary declaration, also known as the Willmaker.

Executor – the person or trustee company appointed to administer the Will of the testator.

Trustee – the person or trustee company appointed to administer and manage any funds to be held on trust for the benefit of one or more beneficiaries.

Beneficiary – the person or persons named in the Will to receive a gift or share in the testator’s estate.

Guardian – the person or persons nominated by the testator to be the caregiver for the testator’s minor children.

Estate – describes the assets owned by the testator at his or her time of death.

Legacy – a gift of money to a beneficiary.

Bequest/Devise – a specific gift to a nominated beneficiary; eg I give my engagement ring to my sister Samantha.

Testamentary Trust – a structure created by the terms of a Will. The trustee holds the testator’s assets for the benefit of a specific beneficiary or group of beneficiaries or for a specific purpose. Depending on the terms of the trust the beneficiary may be entitled to receive part or all of the income each year until the trust vests (ends).

 

Who should you appoint as your executor of your Will?

  • Someone who is likely to outlive you;
  • Someone who has the time available to administer your estate;
  • Someone who is financially confident; and
  • Someone you trust.

Who can you leave your estate to?

You can leave your estate to anyone you desire, including family, friends or charities. But it is important to remember that although you can leave your estate to anyone you elect, if you leave someone out of your Will who believes you should have provided for them, then the courts may ultimately determine who will benefit from your estate. Therefore in deciding who you wish to benefit it is advised that you consider who may be entitled to challenge your Will if you were to leave them out or not adequately provide for them.

Who are your beneficiaries?

When preparing your Will you should also consider the circumstances of those you intend to benefit. Receiving an inheritance can sometimes adversely affect a beneficiary’s personal or financial circumstances. For example if your beneficiary has a disability, a gambling or drug addiction, is a bankrupt or is on a government pension, then receiving an inheritance may prove difficult for them to manage or could see them lose their entitlement to government allowances.