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Have you got a legal Will? If not- why not? There are various reasons that people give, for not having a Will including:-

• I’m too young
• Too busy
• Won’t it go to who I want, anyway?
• It will bring me bad luck-I am wishing myself to die!
• I can’t afford it at the moment
• I am not sure how to leave it

Age should never be a concern (once you are over 18) in making a Will. You only need to look at the nightly news to see that adults under 25 are the main ones dying on our roads.

There shouldn’t be a mess left for the parents to wade through, when a properly drawn Will-will ensure that your hard earned assets will go to whom you want them to.

We all give excuses about time and cost – in all facets of our life and procrastinate, but in particular in relation to our own Will. Maybe we don’t like facing up to the truth about our own mortality? Statistics show that 50% of people don’t have a Will and of the other 50% who do -25% aren’t up to date!

A legally drawn and executed Will saves those that remain, from having a long and costly exercise in obtaining Letters of Administration and then sorting through the Laws of Intestacy to see where the assets are ultimately to go.

The people going through this exercise are the same people still grieving and hence we all ought to do whatever we can to lighten their burden. A legally drawn Will does this.

As well as having a properly drawn Will-it also needs to be properly executed. It has to be signed at the foot of the Will, by the Will maker and witnessed by two independent adult witnesses. In South Australia a Will is commonly signed on each page and witnessed by the two independent witnesses, likewise on each page. It also needs to be dated.

The witnesses should not be beneficiaries nor people connected to a beneficiary.

Witnesses must be over 18 years.

In your Will-you appoint your executors-the people who will apply for probate and then ultimately distribute your assets to the chosen beneficiaries as per the terms of your Will.

If people who could reasonably believe they will benefit from your Will are left out, then there should be proper notes drawn and kept with the Will showing why such people are left out. If the Will maker is blind, cannot read or write English, or can’t for whatever reason sign their name, then a special signing clause or marksman clause must be used or the Will may be declared to be invalid.

It is imperative therefore that when doing your Will you consult a Wills’ specialist who can help you work through your concerns and draw a Will that will leave your assets, tax effectively, to the people, whom you want to benefit. There are four different types of Wills-some may say more, but I think four covers it.

• The first type is the basic mum and dad Will.

In this Will, assets are firstly left to the spouse then to children and subsequently if a child dies then to their children ie your grandchildren. These Wills comprise around 80% of the Wills drawn by legal practitioners and are the simplest and easiest to draw.

• The second type is the Protective Trust Will.
• This Will is needed where a beneficiary is bankrupt, under a mental disability   or  perhaps has a drug, drinking or gambling problem and may waste the hard earned monies you have saved. Trustees are set out in the Will to manage the assets of the trust for the trust beneficiary and to consult with the trust beneficiary/caregiver regularly. The set up trust in the Will needs also to be drawn to take into account any Government benefits the beneficiary might be getting so any trust distributions will not interfere with this. Also if the beneficiary is possibly able at some stage or is receiving a benefit pursuant to a special trust set up under the Social Security Act/ the Veterans Entitlement Act, then this needs to be referred to in the Will.

• The third type is the Life Interest Will.

These are popular where a second marriage is involved (and the home is held          as tenants-in-common) and each partner wants the other to be able to live in the matrimonial home for their life, without (normally) fear that their children may kick out the spouse/partner. On the partner’s death the home will then revert to a tenancy in common without the Life Interest encumbrance and on sale each owner’s ½ will go as per their Will (eg their children if that is what the Will states).

• The fourth type is the Testamentary Discretionary Trust Will (TDT Will).

These Wills are complex to draw and thus need to be drawn by someone specialising in this area of the law, which I do. I elaborate extensively on these Wills in the above Testamentary Discretionary Trust Will tab. These Wills should be utilized by those with assets around $750K or the potential that their estate will be around this figure on their death-but if you wish to pay for it to be drawn (and it’s considerably more expensive than the mum and dad Will) then anyone can have one. Why do I want one? There are four basic reasons why;

• Tax. The monies received by the beneficiaries are taxed at adult tax rates and hence even minors will be taxed at adult rates not minor penalty rates (as set out in more detail in my Testamentary Discretionary Trust Will tab)

• Bankruptcy. If the money left to a beneficiary-remains in the trust within the Will and if the beneficiary goes bankrupt-then the monies can’t be touched by the Trustee in Bankruptcy-unlike all the other assets which can be.

• Divorce – One in 2 marriages end in divorce-and this is the best way to protect your assets if you move into a new relationship.

• Blood line Trusts as they are known. In your TDT Will monies in trust can be passed down through your family blood lines, ensuing the family generations following you i.e. children, grandchildren and great grandchildren are beneficiaries and avoid spouses/partners- thus being passed down through your family blood line.

In South Australia the only people who can take Will instructions and draw Wills are legally qualified lawyers-with a current practising certificate.  Some other relevant matters to consider ;

• If you don’t have a Will, Government legislation will decide where your hard earned assets are going, on your death-is this you want?

• Have any of these happened to you recently- death of a loved one, divorce, remarriage, children, or perhaps grandchildren? If so, you need a new Will or at least a Will check up.

• Did you know marriage revokes your Will-divorce doesn’t?

I specialise in drawing all these types of Wills and hence if any of the above is applicable to you, then please contact me edwardsg@adam.com.au mob 0420 358 912 or 08 8342 1519 and I will be only too pleased to discuss it with you and give you a quote as to what your new legally drawn Will-will cost. Remember I will visit you 7 days a week in the comfort of your own home-in Adelaide and surrounding areas-and it costs you nothing to call and discuss this with me.