When Does A Simple Will Become Complex?
Solicitors are loath to call even a “simple will” a simple will these days. There are so many aspects to the wording used that the layman doesn’t understand, not to mention the trustee powers that need to be included. But even when a will is relatively simple, there is usually a lot that has been considered before it has been prepared.
But when should you expect that a simple will won’t cut it for you? Here are a few scenarios:
Most of us have it these days, and it is often our biggest asset once the life insurance component is also paid. Remember, super isn’t your asset to deal with under your will, so there needs to be appropriate planning for it, potentially some Binding Death Benefit Nominations prepared, and then equalisation clauses used in your will so that distributions are truly equally after tax.
Self-managed super funds, companies or family trusts
These entities also add further complexities, because the assets owned in these entities aren’t yours to deal with through your will. Your solicitor will need to review the Trust Deeds and Constitution to figure out how control can be passed onto the appropriate person that you want.
Life interests or other testamentary trusts
As soon as your start to consider leaving money to your minor children, to be held in trust until they reach a certain age, then your will is no longer simple. There are other management aspects to consider for such as trust, as well as who should manage it until your children reach the specified age, and what it can be used for in the meantime. Likewise with a life interest, the rights under this need to be managed, so your will cannot be simple.
The most complex trusts are family discretionary testamentary trusts, or special disability trusts if you have a disabled loved on that needs to be cared for.
Wanting to leave someone out of your Will
Serious consideration needs to be given to the consequences here, and potentially far greater estate planning to minimise your estate in the case of a claim. This is not something to do lightly, if you want to avoid litigation.
Assets outside Australia, or even Interstate
Assets outside of the country need to be given special consideration, particularly how the law applies in that country, and how a Will in Australia will apply. But if you also have investments properties in other States within Australia, the law also affects these differently in each State, and there are potential consequences when it comes to time to obtain probate, as this may need to be resealed in other jurisdictions.
Making specific gifts or promises to beneficiaries
Sometimes gifts can be straight forward. Other times, consideration needs to be given to how it is done, particular if an estate could have debt, or if the will-maker wants to avoid ademption (where the gift no longer exists). Further, if you make promises to beneficiaries that they may seek to rely on if you don’t stick to the promise, need to be explored thoroughly, particularly if you change you will later.