A will is a very important legal document in that when someone dies, the will sets out how the estate is to be administered and appoints an executor to ensure your final wishes are carried out. In some instances, people tend to make their will before they even have children but fail to update the will later on. It could also be that the chosen executor may no longer be around or unable to fulfil their duties due to ill health, for example.
A study carried out in 2018 found that just over half Australian adults have not made a will. For the remaining 48%, the question you should be asking yourself is this – is your current will relevant and up-to-date? Family circumstances and relationships change – with the addition of new family members who may therefore not be included in a will that you made several years ago. At this point, you should seek advice from an estate dispute lawyer. Moreover, writing will is not tough now with the help of will kit available these days.
Understanding the legal roles and responsibilities
Before going through how often you should update your will, and under which circumstances, it is important to understand the roles that individuals undertake when dealing with a will. The role of the executor has already been highlighted but in essence, this person will direct how the estate of the deceased is to be administered. If someone is appointed as your executor, there is no legal obligation for them to carry out this role when you die.
The executor has to ensure that the assets are distributed to named beneficiaries as set out in the will. They have to determine what assets are left once any debts or liabilities are paid and also which assets should be used to pay off any outstanding monies owed. They have to lodge tax returns for the estate and for the person who has died, and in some circumstances, they may have to file an application for probate. If the will has not been updated, they may also have to deal with queries from those disputing the will or liaise with the appointed estate dispute lawyer.
You can also appoint someone to have enduring power of attorney. If you become ill or unable to make decisions about your finances, those with power of attorney will carry out what you would usually do with your finances. There can be specific limits placed on what they can do as well as temporary limitations on the appointment. If you become ill or incapacitated, for example, diagnosed with onset dementia, then substitute decision makers can be appointed. This falls under the appointment of medical treatment decision maker and prior to them undertaking this role, you should have told them of your wishes in terms of any treatment or care.
All of these roles need to be confirmed and named individuals noted to undertake certain roles. If they fall ill or die, then you have to revisit your will and update it to include other people to carry out your wishes.
Under what other circumstances should I update my will?
If you get married and you had written a will before the marriage, then your will in effect is automatically revoked unless your will was written just beforehand and specifically states that it was written with the marriage in mind. If you remarry then your will written before the marriage may be cancelled as well. So, if you go through any marital status changes, it is time to update your will.
Changes in wealth also need to be accounted for, so if you find that your business is doing really well, you have a substantial promotion and salary increase or you receive bequests that increase your personal wealth, then it is time to review your will. If you set up a new business or family trusts or superannuation, it is also a good time to revisit your will. Superannuation death benefits are not automatically part of the estate of someone who has died. These benefits would usually be paid directly to the relevant beneficiaries according to who has been nominated in the will. This binding death nomination therefore should be checked with any superannuation fund ensuring that it is updated.
Review the following questions when thinking about updating your will
It may be useful at the end of each financial year, once the taxation account has been submitted, to ask yourself a few questions to see if your current will is still fit for purpose.
- Has there been any new additions to the family?
- Do you still keep in contact or see your named executors?
- Where is the original copy of the will held?
- Do you know exactly what you have stated in your will?
If you had your will drawn up when your children were very small but have now grown with children of their own, then it is time to go back and update your will. It could be that you also named executors to oversee your will and arrangements for your children when they were small, in case something happened to you and your partner. Those arrangements may not be appropriate now or you may have lost touch with your executor. Time to speak to your legal advisor and revisit what you have set out to ensure it is fit for your current family circumstance.
Make sure you know there the original copy is kept and that you have also ensured your nearest and dearest are aware. Taking time to look at the various bequests, update in accordance with current financial and family circumstance will make life a lot easier for those you leave behind. Also, it could be that some bequests may not be suitable or you have changed your mind about key decisions such as organ donation or leaving money to a certain charity.
At the least, you should look at updating your will every 3 to 5 years and speak to the legal experts for further advice, ensuring your loved ones are taken care of once you are no longer there to do so.
