Recent research has found that approximately 45% of Australians* pass away without an ‘inestate’ or, as most know it as, a will.
The word intestate is derived from the Latin word intestatus meaning a person who passes away without a will.
Intestacy may result in inconvenience, delay and expense during a difficult time in your life having just lost a loved one.
Intestacy may occur not only where a person fails to make a will, but also for other reasons, such as:
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The will fails to properly dispose of all their assets;
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The will is not valid because it has not been signed and witnessed according to the law;
The person did not have mental capacity to make a will; and,
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The will has been poorly drafted and the legal rules of construction have not been followed.
When considering your estate planning, it may be easy to fall into the mindset that drafting a will is a simple Do-It-Yourself task, especially considering there are many cheap DIY options available online and through your local newsagency or post office. However, a recent analysis*^ completed by Choice, in consultation with several estate planning professionals, looked at numerous DIY will kits available and they settled on this summary comment:
“Will kits can be an excellent research tool. Depending on your situation and skills, they can help you to write your will, but they can’t adequately handle complex situations such as blended families or self-managed super funds. So we recommend you get some expert advice as well. Making sure your loved ones are provided for is far too important to leave to chance, and the consequences could be disastrous if you get it wrong.”
The main points that lead to this summary by Choice regarding DIY wills are as follows:
Will Kit 1
Very basic instructions – could confuse rather than clarify.
Issues relating to children, taxation, superannuation and executors weren’t adequately covered.
Will Kit 2
Doesn’t mention taxation.
Will Kit 3
No space for witnesses to sign each page, so will may not be valid.
Discussion about who could challenge the will was not entirely correct.
Superannuation issues not adequately explained.
Will Kit 4
Explanation about distribution of superannuation was ambiguous.
No provision or explanation as to when it would be appropriate to seek tax advice.
Will Kit 5
Doesn’t deal with taxation and superannuation appropriately.
No clear instructions to get expert advice when in doubt.
As you can see by the above points there appears to be common trends when it comes to DIY will kits i.e. formatting issues and the lack of informative information in certain areas, such as taxation and superannuation. In addition, many DIY will kits do not offer the capacity for establishing testamentary trusts (to protect assets after your passing or for tax-related purposes), nor are they able to be amended with a codicil (an additional document that allows you to change details in your will such as an Executor or a beneficiary changing their name).
In order to limit the chance of leaving behind a partial or fully intestate estate, it is important to seek professional advice form your estate planning professional, as well as with your financial adviser and accountant. This will also ensure that the will that is drafted reflects your full intentions and the individual complexities of your personal finances which could include your personal insurances, investments, superannuation, and taxation considerations.
Every 5 years, it is a good habit to review your estate planning situation and needs. This also should be done after any major event that happens in conjunction with those 5 years.
