To be honest the idea of having to make a Will freaks me out. It’s not particularly comfortable to have to think about death and especially death and family in the same sentence……but what if? What if my husband and I died tomorrow in a car accident after dropping the kids off to school? What happens to our kids? Who’s going to look after them? Which member of our family or friends do we trust the most to raise our kids with similar values and standards, and what happens with our financial assets? Hopefully none of us will ever have to trust out kids to someone else’s full-time care, but if we do it’s comforting to know that we have had direct input into how that happens. Our oldest daughter is seven years old and we’ve been talking about writing our Will on and off since she’s been born but haven’t got around to it for one reason or another (probably avoiding it mostly, hubby even got a kit from the newsagent that went AWOL at some point).
Worst case scenario if you don’t have a Will
- What happens to the kids? If both parents die without leaving a valid Will, any person with sufficient interest can apply to the Family Court for a parenting order to raise your children. This means there is every possibility your children may end up in a home you wouldn’t have chosen for them personally, being parented in a way that’s not in line your own values. A court-appointed administrator will appoint a trustee to manage your children’s inheritance, and once again, it may not be the person you yourself would have liked to have controlling the family purse strings. See more: https://www.essentialkids.com.au/family-life/family-finances/how-to-choose-a-guardian-for-your-children-20140929-10ndz0.html
- To your property? If you own real estate and you die without a valid Will, a more complex and costly legal process must be followed to be able to sell that property. This takes longer and will result in more legal costs than had you just made a Will in the first place. If you own property as joint tenants and you both die without valid Wills (plus any kids), your joint equity in the property will go wholly to the family of the person in the couple who is younger. See more: https://www.nestlegal.com.au/blog/2014/5/2/why-you-should-make-a-will-after-purchasing-property
- Kids from another relationship? The absence of a Will in a blended family not only leaves open the possibility that someone you care about will not share in your estate but also that your loved ones may turn to lengthy, costly and emotionally strenuous litigation in the absence of clear guidance from a Will . See more: https://www.nestlegal.com.au/blog/2014/8/3/kids-from-another-relationship-you-need-a-will
- Digital assets If you don’t let your family know where and how to locate your digital assets (eg photos, emails, frequent flyer points) or your wishes for your digital assets (eg do you want your social media accounts to be preserved or deleted? Who do you want to have access to your photos? Your emails?), your digital legacy is at risk. See more: www.news.com.au/technology/digital-will-how-to-share-your-data-after-death/story-e6frfro0-1226461593404
Worst case scenario if you don’t have a POA
- If you do not appoint an enduring power of attorney (financial) or guardian, and you lose capacity to make your own decisions, only a tribunal (depending on which State you are in) can appoint someone with the legal authority to make decisions on your behalf (eg to transfer bills into their name, take over any disputes on your behalf or sell property needed to pay expenses). This might not be the person you choose, will cost your family far more than had you made a POA to begin with, and is an extra level of stress at an already traumatic time. See more: https://www.theage.com.au/money/planning/passing-the-baton-20140215-32sj0.html
Worst case scenario if you don’t have a Binding Death Benefit Nomination
- Without a valid BDBN in place, the super fund trustee is not required to have regard to the terms of any non-binding nomination in determining how to distribute any your superannuation funds and could distribute it to a family member. See more: https://www.nestlegal.com.au/blog/2014/3/8/what-is-a-binding-death-benefit-nomination-and-why-do-i-need-one
Recently an opportunity came up through Laura Vickers at Nest Legal to do the process online. It has been really simple because the first point of contact is an online pro-forma document that is a basic will structure in which you fill out the basic details. Laura then looks at those details and comes back with any suggestions or recommendations for clarification, this part of the process took place over Skype at 8pm after the kids were tucked away in bed which meant my husband and I could both be part of the conversation. While still a confronting document to have to process, it is good to have it underway and Laura has made it really simple, accessible and lot less daunting. Having peace of mind and knowing there will be a specific outcome for our kids and that it won’t get messy for surviving family members is the wisest $550 we could spend at this point in our lives.
