What to look for in your Will 🕵️
In this short blog post, we look at some of the key questions any modern Will must be able to answer to protect both the wishes of the Will owner and the futures of their beneficiaries.
Before Will Wizard, the only way to have a comprehensive modern Will that answered all of the questions below was to have multiple in-person meetings with a specialist estate planning lawyer.
And it was expensive. A couple could be expected to many a few thousand dollars or more.
To solve this expensive problem, we have made available online the modern Will templates that estate planning solicitors rely on.
If you want a Will that answers all of the questions below, try our guided form at the end of this post. It's free to try, and the best way to learn about your rights and options.
#1 For couples, a Will must plan for the surviving spouse or partner.
a) Does the Will include a Right of Residence or Right of Occupation clause to protect the primary residence of the surviving spouse from third parties?
Without the appropriate provisions, the family home could be lost if the surviving spouse’s new relationship fails, or if the surviving spouse has financial problems (caused by any number of reasons, from an economic downturn to business failure).
b) Does the Will include options for the surviving spouse to protect inherited assets and minimise their tax obligations by receiving their spouse's estate in testamentary trusts?
Most people do not realise that if they rely on a standard Will that does not include the appropriate testamentary trust legal provisions and terms, the long-term tax benefits and asset protection advantages of testamentary trusts cannot be obtained by their spouse and/or children after the fact. They are lost forever.
c) How much flexibility does the Will provide when it comes to dealing with any superannuation death benefits or life insurance benefits paid to the estate?
Most Wills don't plan for this possibility at all, and as such there can be significant tax consequences.
d) Does the Will allow the surviving spouse to minimise their taxable income by sharing income from inherited assets to family members on low tax rates?
For example, up to $18,200 p.a. of income from an investment property could be distributed from a testamentary trust and used to pay for a child or grandchild's school fees and living expenses.
e) Does the Will provide any additional guidance to assist the surviving spouse during this traumatic and stressful time?
Most standard Wills provide little to no guidance which can cause greater stress and greater estate administrative costs. A comprehensive Will sets clear priorities, provides flexibility in how an estate can be distributed and managed and should be accompanied by support and guidance documents to assist executors to facilitate the wishes of both the deceased and surviving spouse as quickly and efficiently as possible.
#2 For parents, a Will must plan for young beneficiaries and children.
a) What does the Will say about the possibility of a child or grandchild receiving an inheritance?
Most standard Wills say nothing about this, even though it is one of the most important and common eventualities a Will can plan for.
b) Who manages the inheritance? Who protects the interests of the child?
Most standard Wills do not give the executor the instructions and authority they need to properly manage a child's inheritance until the child is old enough to do so themselves.
c) Does the Will include directions for how a child should be cared for and to what standard?
Executors and guardians need to understand what their roles and responsibilities are, and the Will must be clear in how it protects the interests of the child beneficiary. d) Does the Will help minimise the risk of young beneficiaries making unwise financial decisions or does it allow immature beneficiaries to simply do as they please? Does the Will include a controlling age?
Allowing a young person at 18 years of age to have complete control over a large sum of money is a sure-fire way to ensure that poor financial decisions are made.
#3 A Will must plan for vulnerable beneficiaries.
a) What does the Will say about beneficiaries dealing with a divorce, money problems, mental health concerns or addiction issues?
Statistically speaking it is almost certain that at least one of your beneficiaries will deal with one of these issues after you pass away.
Most standard Wills do not plan for this possibility at all, leaving inheritances vulnerable when protection is needed most. b) How does the Will protect the inherited wealth of these vulnerable beneficiaries?
Temporarily replacing a beneficiary as trustee that is at 'high risk' due to a Family Court settlement proceeding, a bankruptcy or due to an addiction or mental health concern is one of the key ways a Will can protect the interests of a vulnerable beneficiary.
These vulnerable beneficiaries still have access to funds for important welfare, health, housing, family and living needs during this time, but are distanced from their inheritance when it may be under threat from themselves or third parties.
#4 A Will must give beneficiaries options.
a) Does the Will give beneficiaries options for how they receive and manage their inheritance depending on their changing needs, circumstances and tax status? b) Do these options help a beneficiary to protect and maximise their inherited wealth?
Despite what we may hope, the actual future needs of any beneficiary is unknown.
Most standard Wills lock beneficiaries into receiving their inheritance in their own name rather than providing flexible trust provisions that they can adjust to their changing circumstances over time.
This flexibility gives beneficiaries the best chance to minimise their tax obligations on income and capital gain on inherited wealth while protecting inheritances from third parties following a divorce or financial problems - among other issues.
#5 A Will must provide first & second choice nominations.
a) Does the Will provide the option to appoint multiple executors and guardians? Or only single appointments? What about trustees and appointors?
Modern comprehensive Wills must plan for the worst and include contingencies if your first choice nominations are unable or unwilling to fulfil their role as your executor(s) or guardian(s).
b) Does the Will include a clause that permits executors, guardians, and trustees to act jointly if there are multiple people appointed, as well as allowing for a surviving nomination to act alone? Most standard Wills say nothing about this, which can cause issues when an executor or guardian passes away or cannot fulfil their duties.
#6 A Will must give executors the guidance & authority they need.
a) Does the Will guide the executors with clear directions and priorities to ensure the efficient distribution of your estate?
b) Does the Will give the executors the authority they need to assume control over your assets?
c) Does the Will map out an easy to follow plan that first-time executors can easily follow and understand?
A lack of clear directions, priorities and authorities given to executors is one of the most common and serious shortcomings of standard Wills. Executors are left with a blunt spear, and it is the beneficiaries that suffer.
These are only some of the essential questions all good modern Australian Wills must answer.
What is clear in 2021 is that most Wills, particularly the standard 2-6 page Wills that most people rely on are not answering these questions effectively, or at all.
At Will Wizard, we have spent a great deal of time and effort working with some of Australia's best estate planning lawyers to answer these questions for you.
We've done all of the 'heavy lifting' so that all you have to do is complete our fun and simple guided form.
We then courier your Wills in a secure Will Wizard portfolio to your home or office with simple signing instructions and support documents to assist you, your executor(s) and beneficiaries.
Simply order, sign, and then relax. Everything is included in the Wills for you.
Thank you for reading.
We’d love to hear from you.
Will Wizard Co-Founder
As always, if you have questions about the suitability of any Will for your needs and circumstances, seek independent legal advice.