Wills

People often underestimate the importance of having an appropriately drafted and well structured Will.

If you die without a Will you have no control at all over the distribution of your assets – they will be paid in accordance with a statutorily determined distribution. Assets, such as your house or car, may have to be sold in order to comply with the “one-size fits all” distribution.

To appreciate the importance of having a Will take the simple example of a husband and wife with children. If there is no Will, the law says that the surviving spouse will receive the first $100,000 plus 1/3rd of the residue of the estate whilst the children share in the remaining 2/3rds. If the family home was in the sole name of the deceased, and the value of the house is more than $100,000 plus 1/3rd of the residue of the estate, the house may have to be sold so that the children can be paid their share of the estate. Whilst the surviving spouse does have a right to elect to acquire the matrimonial home, often age and other circumstances prevent them from being able to obtain the necessary funds to buy it.

While having a Will does not prevent someone contesting it and potentially making a claim over your Estate, you can take precautionary steps to reduce the prospects of success for a potential claimant. Testamentary trusts are a method of asset-protection and tax reduction which we often incorporate into Wills.

When considering claims the courts always consider the testamentary rights of a person to distribute their assets in the way they wish. The courts will not re-write a Will just because they feel that the Will-maker should have distributed their assets differently.

While the contents of your Will can be challenged, having control over the distribution of your assets is preferable to having no control at all.

Why get a Will by Aitken Partners?

  • Without a Will you have no control over the distribution of your assets which will be distributed in accordance with a statutorily determined formula - a ‘one-size fits all’ distribution.
  • Will kits fail to take into account the will maker’s specific financial and family situation and leave the will maker without advice in regard to specific beneficiaries and the consequences of dealing with certain assets after death. For example, the use of testamentary trusts are a method of asset-protection and tax planning which we often incorporate into Wills.
  • A Will allows you to take precautionary steps to reduce the prospects of success for a potential claimant over your Estate. The courts will not re-write a Will simply because they feel that the Will maker should have distributed their assets differently.

 

See also - Wills & Estates FAQ: Probate and letters of administration