Do It Yourself
Wills

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Everyone over the age of 18 years should have a Will regardless of whether it is believed one has assets or not. On commencing employment, even part time or casual your employer will most likely have to pay into a superannuation fund on your behalf, or you might be a beneficiary in some-ones estate or win Gold Lotto or the Pools, all of these are Assets.

With the community held to ransom over the game of politics we never know for how long into the future a deceased estate will be required to be Probated (prove the will), in other words make the will a court order or prove that you have proper title to that estate. Death Duties are a separate matter. Death Duties were introduced in to Australia in 1914 ( World War 1) and in Queensland did not cease until 1977 and later elsewhere in Australia. Probate enabled this tax to be levied on the value of the deceased estate, today it appears replaced by a capital gains tax. Probate and death duties hit the ordinary person hardest because with the passing of time inflation lifts small estates into a price group never intended. The rich man has the means to avoid this problem, e.g. Trusts and Companies.

Joint Tenancy is not involved in this situation as all that is required is simply to record the death of an owner and  ownership vests in the survivors. So bank accounts, insurances. shares in companies and real estate in Joint Names are not affected by the Will.

Tenants-in-Common or property in one name only and Leasehold Property are likely to fall victim to Probate which for many is just a needless cost and delay. Only time will tell if Death Duties will again take their toll in the future.

Many banks will hand over cash if the amount is under $15,000 or if you can persuade the bank manager that you intend to leave the account undisturbed with his bank. It really depends on just to whom you talk.

Changes are always taking place and no one can for-see everything. In our experience it seems that the largest beneficiary makes the best executor/rix as they are more likely to take better care. It seems best to have one executor at a time who will be convenient and capable. More than one can lead to bickering and disagreement beyond belief when the testator was alive. Try to avoid using someone overseas and interstate as distance alone leads to problems.

Nominate another to act in the event that that person predeceases. The same can apply to beneficiaries and think it through if you wish your grandchildren to benefit instead of that share going to the other surviving children. Perhaps you may consider the appointment of a guardian for the children.

If there's been a divorce then the divorce court lawyers are most likely to benefit as divorcees usually fail again and any children can be a greater problem than their parents. A Will made before a divorce or marriage can be invalid. It is no longer necessary to state if your beneficiary survives you for one month or to pay your expenses. It's the job of the executor to do it anyway.

Should it be that both parents died leaving an estate and it cannot be determined who died last then the estate could go by the Will of the younger.

Wills can be made preferably on one side of durable A4 size paper in handwriting/printing, typed or by computer. Some points to observe are to make the writing continuous and to diagonally draw a line across any unused space and initial. After seeing relatives of the deceased with carbon, undated copies of Wills, it could be is a good idea to have three originals of a Will, not duplicates, in the event of one being lost. As they would have been signed on the same day it would be immaterial which is used as the last will signed is the regarded as operative. Recent cases with Leasehold have shown the benefit. One to be left perhaps in the bank for safe-keeping, one for the executor and yours for reference.

Two witnesses are required who must be over the age of 18 years, cannot be beneficiaries or related to beneficiaries.

J.P.'s are not required.

The testator and witnesses must not leave the room until signing is completed in the presence of each other. Should the Will exceed one page each page at the bottom should be numbered e.g. "FIRST SHEET" and signed and witnessed.   Do not pin anything to the Will and all use the same pen and all initial any alterations. Any separate instruction or wish seal in a separate envelope but do not affix to the will.

Should you wish that a particular piece of property goes to a particular person then say "upon trust to (Full Name)" and perhaps include (to sell, call in, and convert the same into money with full discretion  to postpone for as long as (he/she) shall think fit).

Some say "to any person who successfully challenges this Will I leave the sum of One Dollar ($1)."

Should you leave someone out of your Will remember to say why.

It you wish to leave the whole or part of your estate to a charity after the name of the charity you would insert "and I declare that the receipt of the Honorary Secretary or the Honorary Treasurer of the time being shall be good and sufficient discharge to my trustees for this bequest."

A MARKSMAN CERTIFICATE by an attesting witness will be necessary when the Testator/rix is blind, physically handicapped or unable to read or write and can only make his/her mark.

Testator is person making will. Executor person appointed to carry out provisions of a will.

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Last updated 7 Septemer, 2009