The Australian Will Kit
What is a Will Kit?
What about free Will kits?
Good idea or bad idea?
Let's talk about Will kits.
Are they any good? Should I buy one? Why are they so cheap? Why are some Wills more expensive? What is the difference between a Will kit and other Wills from a lawyer? How is Will Wizard different?
All of these questions boil down to understanding the following two things:
1. A Will kit’s strengths
2. A Will kit’s weaknesses
Once you understand a Will kit's strengths and weaknesses, you will be in an educated position to decide if a Will kit is right for you and your family.
Let’s start with the basics.
What is a Will kit?
A 'Will kit' is the name given to all basic Wills that are available for download online or from your local Australia Post store.
They are generally inexpensive, ranging in price from $0 to about $200 per person.
Another way to spot a Will kit is its length, as they are generally only between 2 - 6 pages long.
They are ‘Do It Yourself’ (DIY) Wills, where a template is provided. You then print it out and hand write in your information.
Any Will you pay a solicitor to draft for you is not considered a Will kit.
However, that is not to say that a Will from ‘every’ solicitor will be much different to some Will kits. I go into this in more detail towards the end of this page.
OK, so what does a Will kit do well?
What are a Will kit's strengths?
Now I have to tread carefully here because this would be a one-line answer if I was brutally honest about Australian Will kits.
However, to be fair to Will kits, in 2020 they have some very stiff competition so they are always going to look (how to put this nicely) behind the times.
It’s like comparing a mid-90s dial up internet connection to today’s fastest broadband connections.
Just as the dial up service was revolutionary for its day, the basic 2-6 page Do It Yourself Will's time has most certainly come and gone.
However, that is not to say that a DIY Will kit is completely useless. It does perform a few of the basic functions of a modern Will.
It’s just that Will kits are missing all of the really important stuff.
We will delve into what's missing when we examine a Will kit’s weaknesses.
So what basic functions does a Will kit perform?
They generally state your name, your address and the people you wish to inherit your estate (your beneficiaries).
They also usually offer the opportunity to nominate the people you wish to act as the executor of your estate, and in some cases they also offer the opportunity nominate the person you wish to be the guardian of your children.
Some Will kits also offer the opportunity to list your assets. However this is highly problematic as basic Will kits need to be constantly updated as your assets change over time.
And that’s about all folks…
A Will kit leaves you to your own devices and allows you to hand write in the basic details and nominations of your Will.
Namely the people you want to receive your stuff when you die, and the people you wish to act in certain roles like executor and guardian of young children.
So what’s the big problem I hear you say? Isn’t that all a Will is supposed to do anyway?
Well if you’ve come this far you owe it to yourself (and your loved ones) to understand the weaknesses of a Will kit.
Because there are A LOT of weaknesses.
What are a Will kit's weaknesses?
Now, we would be here all day if tried to make a list of all the weaknesses or a list of all the important things missing from Aussie Will kits in 2019.
Instead, I will list my:
Top 3 Will Kit Weaknesses
No Inheritance Protection
Most Aussies don’t consider themselves ‘wealthy’.
The good news is that the growing reality for most normal Aussies is that when the value of their estate is totalled (i.e. house + super + life cover + investments + cash etc) it is usually well over a million dollars, often over two million, or more.
That is serious money that needs protecting.
Aussie Will Kits DO NOT provide any protection of inherited wealth.
Modern Wills like those from Will Wizard® (or those from experienced lawyers that offer testamentary trust protections) offer long-term protection of inherited assets from a range of common circumstances where inherited assets are lost.
By long-term protection, we mean 80 YEARS across generations.
What common circumstances needing protection am I referring to?
Modern Wills help protect inherited wealth from events such as:
Defacto relationship breakdown
A Mental Health Issue
A Drug Addiction
And the list goes on and on.
Let's look at divorce or de facto relationship breakdown.
Given that the average relationship lasts for just over 10 years in Australia, it is HIGHLY PROBABLE that you, or your spouse, or one of your children or grandchildren will suffer a divorce after either you or your spouse die.
Modern Wills providing testamentary trust protections shield inherited assets from Family Court proceedings when formulating a financial settlement.
Will kits do not do this.
Imagine all of your hard work building up your wealth during your lifetime only for it to be gobbled up by someone outside of your family and their lawyers following a divorce.
Just because you relied on a basic Will kit.
Let's now look at financial problems like bankruptcy.
Inherited wealth held in a testamentary trust is considered privileged and is protected from common financial problems where an inheritance may be under threat from third-party claims.
Just like relationship breakdown, financial problems are incredibly common which is why modern Wills plan ahead to protect family wealth from being lost when life hits a major financial crisis.
Once again, Will kits do not do this.
No Tax Benefits
Will kits leave beneficiaries to receive their inheritance in their own name.
For the uninformed beneficiary, this seems like a brilliant plan. "It's mine to do with as I please"...as if any alternative would place unreasonable restrictions on how they use their inheritance.
The reality could not be further from the truth.
Unless a beneficiary is too young, not of sound mind, severely disabled or unable to properly manage their inheritance themselves for any other reason, the purpose of receiving the inheritance in a trust or trusts created by the Will is simply to protect assets (as per the above) and to help the beneficiary minimise tax, and not to place restrictions on how they use their inheritance.
In fact, for adult beneficiaries of sound mind, the reality of having their inheritance held on trust in the eyes of the ATO incurs no practical day-to-day difference for the beneficiary.
Money is still invested as they see fit. Money is still held in bank accounts. Assets such as property remain as they always were.
Nothing changes, in reality, other than submitting a tax return for the trust once a year.
However, this small change, from controlling the assets held for your benefit on trust instead of owning the assets outright in your name, creates powerful opportunities to minimise ongoing tax obligations.
Significant income tax savings for beneficiaries
Testamentary trusts give a beneficiary the option to reduce personal income tax by splitting income from the investment of the inheritance between a range of family members on low tax rates. The trustee of the testamentary trust (normally the primary beneficiary) has complete discretion to determine who receives the income of the trust. Tax is paid on the income of the trust at the marginal tax rate of the beneficiaries who receive it.
Therefore, by selecting beneficiaries on low marginal tax rates, the trustee can minimise the tax liability of the trust. The trustee can choose to distribute income to minor beneficiaries of the trust with each beneficiary being able to receive up to $18,200 of income tax-free to pay for education and living expenses.
For a one million dollar estate that is invested for a modest 5% return, this equates to $50,000 income per year, which if distributed among children or low-income family members could equate over ten years to half a million dollars tax saved for the benefit of your family rather than the ATO.
Significant capital gains tax savings for beneficiaries.
Testamentary trusts also provide the opportunity for beneficiaries to minimise Capital Gains Tax which arises from the sale of assets. Capital Gains Tax is not triggered when an asset belonging to you passes via your Will to your executor or the trustee of a testamentary trust.
Also, there is no Capital Gains Tax when your assets are transferred from the trustee of a testamentary trust to a beneficiary. As with the income of the trust, the trustee can select which of the beneficiaries of the testamentary trust should take the capital gain.
By choosing to distribute the capital gain to a beneficiary on a low or nil income, the capital gains tax liability can be significantly reduced. Holding the assets of an estate within a trust offers the beneficiaries an opportunity to defer the need for the sale of assets (and therefore capital gains tax) until later when more numerous beneficiaries come into existence.
The tax that is deferred is tax saved.
This is a huge problem with Will kits because it leads to huge mistakes and huge losses of inherited wealth.
With Will kits, you are essentially handing yourself the keys to an incredibly complicated million dollar fighter jet without any training and told to go for a joy flight.
You are more than likely going to do something that is incredibly risky and you will crash and burn. Or you will not have considered some future maneuver....and either you or your loved ones will crash and burn in the future.
When writing a Will, there is over a dozen different family and tax laws as well as different legal regimes that can impact on a your deceased estate, not to mention the infinite number of personal family and financial circumstances that need to be considered.
This alone gives an insight into why the very best estate planning lawyers in Australia that specialise in Wills are paid handsomely for their services; because writing a great Will is really hard to do well!
I could literally write a Top 100 list of problems that having no guidance routinely causes for people who write their own Will or rely on Will kits.
By way of one quick example...
The laws of intestacy that dictate who receives your estate if you die without leaving a Will also dictate who has a legal right to your estate...like your spouse, de facto partner, children, other financial dependents.
So if in completing your DIY Will Kit you decide to inadvertently go against any of these intestacy laws you are opening the door for someone to contest your Will.
Your estate pays the bill...
The court fees and legal costs of a contested Will are paid for by your estate...not the parties involved in the dispute!
These disputes usually mean many hundreds of thousands of dollars go down the drain before your executor can even start to distribute your estate.
All because someone thought it was a good idea to fly a jet plane without a pilot’s licence :)
So those are my top three problems with Will kits:
1. No Inheritance Protection
2. No Tax Benefits
3. No Guidance = Bad Decisions
However there many other advantages and protections provided by modern Wills that basic 2-5 Will kits do not provide such as:
Useful beneficiary protections
Dispute avoidance measures
Guidance for executors
Guidance for beneficiaries
Flexibility with changing life circumstances
Efficient estate distribution
The next logical question is:
What is the right Willl for you?
An Estate Planning Lawyer
This is a lawyer who only does Wills.
Not a lawyer that ‘dabbles’ in estate planning along with other legal disciplines. I’m talking about a specialist.
Estate Planning is very difficult to do well, so you want someone who's sole focus and experience is Wills. You can tell the difference between a proper Will and a Will kit by simply holding them.
Proper estate planning Wills are between 20 and 50 pages long because they are drafted with future scenarios and circumstances in mind and to provide clear and detailed instructions, guidance and powers to executors in order to help them best manage and protect beneficiaries and their inherited wealth.
Being an executor is hard enough, let alone without clear guidance or instructions.
To re-use the analogy from above, any executor relying on a Will kit is a bit like being given Lego instructions to build a fighter jet. Will kits make the executor's life difficult.
If you have the time, and the cash, we recommend you seek the advice of an experienced estate planning lawyer.
Cost: $1,500 - $25K per couple*
* Depending on your personal and asset circumstances (with multiple in person meetings required with your lawyer).
Will Wizard Australia®
There are no time-consuming meetings and no expensive legal fees.
No experience or financial details are required, it only takes 10 minutes online to complete, and we guide you through the easy online process so there are no mistakes.
We’ve brought together legal and technology experts to remove the two major hurdles stopping most Aussies from having great modern testamentary trust Wills, namely not having enough time or money.
Will Wizard® is the next step in the natural evolution of the online Will.
It’s the best of both worlds.
The core benefits and protections of modern estate planning Wills at an affordable price that you can arrange from the convenience of your home, phone or office.
Learn more about Will Wizard’s fun and straightforward online process here.
Cost: $899 per couple* | $499 per single person
Free or Cheap Will Kits
You will have figured out by now that we are not a fan of basic 2-6 page Will kits.
There is too much at stake to rely on a few flimsy pages that provide no clear guidance, benefits or protections.
We believe Aussies are selling themselves and their families short if they choose to rely on these basic Will kits.
Especially now that we have created Will Wizard - Get Started
Cost: $0 to $300 per couple*
* Just don't do it. No protections, no advantages and often cause problems.
My conclusion is this:
Take your Wills seriously and don't rely on cheap Will kits.
Spend the $3,000 - $5,000 AUD on average for proper estate planning Wills from a serious estate planning lawyer... or
If you are never going to spend that kind of money on Wills, or don't have that kind of cash laying around, don't put it off until it's too late.
Will Wizard® provides the core inheritance protection, tax minimisation and dispute avoidance benefits of proper estate planning Wills, and it comes with all the additional guidance documents to make your life, and the lives of your executor and beneficiaries far easier.
Basic 2-5 page Will options are not worth the risk.
All the best to you and yours for a happy and safe future.