Wills & Estates
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How are your wishes, as contained in your Will, carried out?
When you make a will you will appoint an executor and trustee who will handle your affairs when you die. Whilst it is usual to choose one person to perform both roles, you can name different people as executor and trustee, and you can name as many executors as you like, although appointing more than two can make for complicated decision making and we do not recommend this approach.
The executor’s role is to obtain probate, pay your debts, and distribute your assets in line with your will.
Your trustee administers any trusts set up in the will. This usually happens where you leave assets to people under the age of 18. Before you nominate someone as an executor or trustee, you should make sure they’re comfortable taking on the responsibility you’re giving them. It’s often a good idea to appoint someone younger than you, or to nominate alternate executors and trustees, in case the ones you’ve appointed die before you do.
Because of their expertise in administering wills, people often choose to appoint their solicitor as executor and at Southern Legal we are prepared to accept instructions to do this.
Changing Your Will
You can change your will whenever you like. You should certainly change your will when your circumstances change – for instance, if you divorce or remarry, or if one of your beneficiaries dies.
Unfortunately a Will cannot be changed crossing something out and writing something different.
If you want to make a minor change to your Will, then it may be suficcient to make a codicil, an authorised amendment to the will. Similar to a Will, a codicil needs to be in writing and signed and witnessed by two people. but these do not need to be the same people who witnessed the Will itself.
If you want to make a major change, it is usually best to make a whole new will.
What happens if you marry or divorce?
Usually, getting married cancels the terms of any will you’ve previously drawn up but there are exceptions, for example if the Will has been made with the express intention of your marriage taking place.
On divorce, it cancels any gift you made to your former spouse under your will as well as cancelling their appointment as trustee, executor or guardian under your will, except as trustee for property left to any children.
Therefore it is imperative that you should always make a new will if you marry, divorce, or if you’ve been separated for a long time.
Who can you leave your assets to?
You can leave your assets to whoever you like, but you have a general obligation to provide adequately for your spouse or de facto partner, your children, any other dependents. If you don’t they can bring a Family Provision claim against your estate and your nominal estate. In New South Wales this is done under under the Succession Act 2006 (NSW). For further details on this see our dedicated pages for Family Provision Claims.
Where should you keep your Will?
Your Will in a safe place and let your executor know where you’ve put it. That’s because, if you misplace your will and no one can find it, it won’t be effective. Southern Legal can store your will for you (free of charge) and give you a certified copy for your own records.