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Coronavirus has even changed the way we're sorting out our wills. Here's why
By business reporter Emily Stewart Updated Sat 18 Apr 2020, 10:10 AM AEST
Your will should include the name of a guardian to care for any children you may have.
It may seem morbid, but now, more than ever, many of us are sorting out our life admin — and that includes writing our wills.
Never a simple task to begin with, some lawyers say social distancing restrictions have added to the unique complications and challenges faced when putting a will together.
You asked how sorting a will out would even be possible if you can't physically meet with a lawyer and witnesses.
So the ABC's Personal Finance team looked into it.
First things first: Do I only need a will if I'm rich?
A will is a legal document that sets out where your assets will go and who looks after your kids when you die.
So, as soon as you have any amount of savings, an asset like a house or a share portfolio, or you have a family, it's a good idea to write a will, says wills and estates lawyer Teresa Catalano.
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"If you don't leave a document like that in place, the intestacy laws of the relevant state or territory in Australia will kick in and essentially that legislation determines where your assets will go," she said.
Dying intestate just means dying without a will, and there are laws about who will inherit your money or assets if you haven't made your wishes clear.
I've got kids. What happens to them?
Photo Making plans today may spare great frustration and heartache later.
When it comes to who looks after your kids if you die, the courts ultimately decide, but they do take notice of what's in your will, says Ms Catalano.
"If you've got children, you need to think about who will be their guardian until your youngest is 18 years old," she said.
And you probably want to set out who will have legal access to or ownership of your digital assets.
"Things like email accounts, online banking passwords, social media accounts etc — it's important to give the power to control those assets to the relevant trusted person," Ms Catalano said.
"Often people forget about digital assets because they don't carry any financial value, however, they are very important."
To sum it up, your will should include the person you want to manage your estate (the executor), details of your assets and how you want them divided, what should happen if someone mentioned in the will dies before you, and the name of a guardian to care for young children.
It's also recommended you include instructions for your funeral arrangements.
So, do I need a lawyer?
Not necessarily.
You can write your own will or use a will kit, if you get it witnessed properly.
However, it's a risky option, says Professor Prue Vines, an estates expert at the University of New South Wales.
Photo Is it worth putting it together yourself? Or getting a lawyer to do it for you?
Free Images: shho
"You're increasing the risk the will [might] fail or somebody will challenge it," she said.
"It's quite easy to make mistakes that are pretty fundamental, some of the language that gets used in wills, for instance.
"One of the problems with will kits is that they leave a really big space [between the start of the document and where you sign] and people can come along and write what they want in it.
"You can solve that problem by signing immediately below or by ruling through the pages but of course people don't always know to do that.
"You've got to think about whether [engaging a lawyer] is an investment worth making."
There are two important exceptions to be aware of
"Not all of your assets pass under your will when you die — only those assets you hold in your sole personal name," Ms Catalano said.
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If you own a property and when you signed the contract you ticked "joint tenants", your share of the property automatically goes to the other joint tenant when you die.
That's not the case if you ticked "tenants in common" (your share of the property will then go to whomever you have designated it to go to into your will).
The other exception is superannuation.
Your super will go to whomever you have nominated under the "binding nomination" section on your superfund.
It essentially overrides whatever directive is in your will.
I can't meet with two witnesses right now! What can I do?
Usually, you need to sign your will with two independent people watching. They also need to sign it.
Obviously, with coronavirus restrictions in place, it's harder than usual.
The New South Wales Government has brought in emergency legislation that allows wills to be witnessed and signed electronically rather than in person.
"There have been provisions made that a solicitor can draft it and can write a clause saying 'it's during the period of coronavirus and they can't get the witnesses' and the testator can sign it themselves," Professor Vines said.
Or people could combine the signing with a medical visit, or get neighbours to do it over the fence, while still adhering to social distancing, suggests Ms Catalano.
Don't forget why you're doing it
Preparing your will can be a complicated and emotional task — particularly right now.
But remember, the main reason for doing it is to make life less traumatic for your loved ones after you die.
"It's bad enough for people being grief-stricken," Professor Vines said.
"You don't want to add to their burden. And wills are a way of trying to make the process work smoothly — so relationships aren't destroyed."
This is general information only. If you need individual advice, please see a lawyer.
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Posted Sat 18 Apr 2020, 10:04 AM AEST
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