Frequently Asked Questions
- What is a Will?
A Will is a legal document that sets out what you want to happen to your assets when you die. Making a Will is the only way you can ensure your wishes for your assets will be known after you pass away.
- Does everyone need their own Will, even if they are married?
In Australia, each person needs to have their own individual Will, regardless of whether they are married or not. In some other countries it is legal to have one Will for a husband and wife.
- How do I ensure my Will is valid?
For a Will to be valid:
- it must be in writing – handwritten, typed or printed
- it must be signed by the person making the Will and witnessed by two or more witnesses (beneficiaries should not be witnesses as it may cancel out their entitlement)
- you must have ‘testamentary capacity’ to make a valid Will which means you have the capacity to understand the facts involved in your decision making, you have the ability to weigh up the consequences of your choices and how they will affect you, and you can communicate your choices and decisions.
- What should I include in my Will?
The terms of your Will describe what you want to happen to your assets after you die. These are referred to as your gifts, legacies or bequests and may concern real estate, cars, personal items such as jewelry, furniture or collectables, or simply money. You can give your assets to whomever you like.
- What is a bequest?
Leaving a gift to a person or organisation in your Will is called a bequest. A charitable bequest is a gift left to a charity or not-for-profit organisation. There are three major types of bequests:
- A specific bequest is a gift of a particular asset such as a house, furniture or jewelry.
- A general bequest is usually a sum of money or a percentage of the value of your estate.
- A residual bequest includes anything remaining in your estate (or a percentage thereof) after the specific and general bequests have been made.
- Do bequests to charities have to be large gifts?
A charitable bequest does not have to be large to be effective. Your bequest, regardless of its size, combines with other bequests to empower the charity to continue its work with confidence in the future. Large bequests may provide the extra funds necessary to establish, maintain or expand an important facility or service.
- How do I make a charitable bequest?
To make a charitable bequest, it is advisable to consult a legal professional. There is usually a preferred wording for a bequest to a particular charity which your solicitor can find for you.
- If I make a bequest to a charity and my personal circumstances change, is my bequest still legally binding?
The concern about future living costs and needs is often the main reason that people do not leave a gift to a charity in their Will. You can make your bequest with confidence, knowing that if your circumstances do change, you can revise or update your Will at any time should the need arise.
- How often should my Will be revised or updated?
Your Will expresses your wishes at a particular point in time. As your circumstances change, it is advisable to regularly review your Will so that it accurately reflects your current wishes.
- Does getting married or divorced affect my Will?
Getting married or divorced can affect your Will. Please speak with your solicitor in this regard.
- Can my Will be contested?
While you are entitled to leave your assets to anyone you wish, in some circumstances, friends or relatives who believe they have not been sufficiently provided for are entitled to contest your Will.
- What is an Executor and what do they do?
An Executor of a Will carries out the wishes of a person after they die. They manage the estate within the terms of the Will and protect the assets of the estate. The Executor will require professional assistance from a solicitor and accountant. When appointing an Executor, you should ensure that he or she has the time and capability to carry out the required duties. It is an important personal responsibility that can be time consuming, challenging and require complex decisions.
- What is a Trustee and what do they do?
A Trustee looks after ongoing bequests to family and friends for a specific time stated in a Will—for example, to your children or grandchildren.
- What happens if I die without a Will?
Dying without a Will is called dying intestate. Your assets will then be distributed according to a pre-determined formula with certain family members receiving a defined percentage of your assets despite what you may have wished. Dying intestate may sometimes result in your surviving spouse, family and friends suffering unnecessary financial hardship and emotional stress.
- What is a Power of Attorney?
A Power of Attorney is a legal document in which you appoint a person of your choice to manage your assets and financial affairs while you are alive. Your Attorney can act for you in a variety of circumstances or when you are no longer able to manage your own affairs—the latter situation requiring the appointment of an Enduring Power of Attorney, which will continue to have effect after you have lost your capacity to self-manage.
Making a Power of Attorney does not mean that you will lose control over your financial affairs. It simply provides your Attorney with the formal authority to manage your financial affairs according to your instructions.
- What powers and duties will my Attorney have?
The person you appoint as your Attorney may potentially make any decision relating to your finances or property which you would do yourself, or you may restrict their decision-making capacity. A Power of Attorney can contain a broad general power and authority or it can be limited to specific tasks. In any case, your Attorney needs to be someone you trust and must always act only in your best interests, recognising your right to confidentiality.
- When does my Power of Attorney cease?
The Power of Attorney appointment will only cease if you die or it is revoked. Upon your death, the executor of your estate will assume responsibility for your affairs. You may also revoke the Power of Attorney. There are many reasons why you may wish to do so but this must be done by informing your Attorney in writing. You should also notify your bank and any other relevant person or organisation of the revocation.
- What is Enduring Guardianship?
A Power of Attorney relates to the management of your finances and property. An Enduring Guardian is a legally appointed decision maker with regard to personal issues—such as where to live, what services to engage and consent for medical and dental treatment—in situations where a person has suffered a disability or has lost their capacity to make these decision for themselves. A decision or consent by a Guardian has the same legal effect as if the person had acted personally. By appointing an Enduring Guardian you can be sure that your best interest will continue to be taken into account should you not be capable of sufficiently caring for yourself. You must be confident that the person you have appointed has your best interests at heart.
- Why do I need an Attorney or a Guardian?
If you lose your capacity to effectively manage your own affairs and do not have a Power of Attorney or Enduring Guardianship in place, the people who care for you may encounter difficulties in managing your affairs according to your wishes because they have no legal control over your assets. Your family would not be able to access your finances to pay bills, enter into contracts in relation to real property such as a house, or consent to specialist medical treatment vital to your care.
LEGACY GIFT ENQUIRY
Please provide your contact details, below, and Mark Zworestine, JCA’s Legacy Gifts Manager, will be in touch with you to discuss further. We thank you for considering our community’s future and look forward to assisting you.
If you prefer, you can contact Mark Zworestine directly at JCA at 0412 218 918 or email [email protected] and he will arrange a confidential discussion.