The information provided below is general in nature and should not be relied upon legal advice. You should call 03 5445 1000 and speak to a lawyer at OFRM about your particular circumstances.

Wills — What information is needed?

I find that a lot of people put off the task of making a Will because they feel that they have not completely resolved in their own mind what they want to do and how they wish to achieve those objectives. But the best approach is to gather information and ideas and put them before an experienced Wills lawyer who can then suggest ideas and options and prepare the Will accordingly.

Having prepared more than 5,000 wills over 30 years; I have been able to resolve plans for just about every situation that could possibly arise. For even the most complex situation, there is a solution. Many clients are often surprised that after a detailed conversation, a workable solution could be agreed upon relatively quickly. If you go to a specialist Doctor, you would expect that they would be able to diagnose and treat your condition, no matter how unusual. A specialist lawyer is no different.

Your questions will be most easily answered if you can come prepared with the information listed below.

The Basics

A list of assets should be prepared. Ownership variations should be noted. Some assets might be owned jointly with other persons. There may be family trusts, private companies, superannuation funds and unusual investments.

The approximate value of the assets should be noted.

Specific Gifts

It is not uncommon to make a specific gift of an item to a particular beneficiary. This usually involves an item of strong sentimental value, although it might also have monetary value as well. It usually is an item that is unlikely to be converted into cash. For example jewellery, War medals, family heirlooms, etc. If a mother has three daughters, but only one engagement ring, then a decision should be made as to which person is to inherit the engagement ring. A direction that the daughters can sort it out between themselves is simply passing a problem onto the next generation. The Will could provide for gifts of other important items to the other two daughters who do not receive the engagement ring.

However, for most people, their assets represent a monetary value which can be divided between various beneficiaries. An attempt to nominate every asset to a particular beneficiary is rarely a good approach.

Executors

Executors have the task of carrying out your wishes. Generally, beneficiaries in the Will can often be the most appropriate persons to be Executors as well. Care must be given about choosing the right person. Often two executors are best, particularly if assets are being held on trust for infant children.

Provision for Infant Children

It is common to leave a gift to infant children on trust until the child reaches a particular age. You can nominate the age and 18, 21 or 25 years are common choices. When the child reaches the specified age, they receive the inheritance without restriction. Until they reach the nominated age, a Will would normally provide that the Executors could pay some of the money toward the education, maintenance or general benefit of the child. Consequently, the choice of Executors is important. Where monies are being held on trust for children, I think there are advantages if there is more than one Executor.

Taxation

While death duties were abolished many years ago, there can be a variety of taxation issues that can be relevant when preparing a Will. Shares and property will be subject to CGT if acquired after 20 September 1985. The principal residence is exempt. Awareness of the taxation issues is important so that you are able to assess the underlying net value of an asset.

Superannuation

This very important area is full of important rules (and governments have been altering these rules from time to time – and no doubt will continue to do so). A summary barely does nay justice to this issue, but these issues are always important:

  • How many funds do you have? Is consolidation a good idea?

  • What is the accumulated balance?

  • Is there any insurance death benefit payable?

  • Is there a binding death nomination, and if not, should one be made?

  • There are important tax concessions depending upon who receives the benefit.

The next step

Once you have been able to gather as much of the above information make an appointment to see your lawyer who can advise you of the options available to you. Don’t try to solve all of your plans before you see the lawyer – let the lawyer complete that task. Focus on the big picture issues and let the lawyer can work out the details.