Preparing for a wills meeting with your lawyer is a crucial step in ensuring that your wishes are properly documented and legally binding. A will is a legal document that specifies a person’s directions for their estate when they die. In Western Australia, wills are governed by the Wills Act 1970. In the document, a person can leave instructions for any property to which they are entitled at the time of their death. It can also contain instructions about, for example, the care of children or pets, funeral arrangements, and donations to charity. Whether you're creating a will for the first time or updating an existing one, having the right information at hand can streamline the process and help you make informed decisions. In this guide, we'll outline the essential information you should gather before your meeting with your attorney to maximise its effectiveness and ensure your wishes are accurately reflected in your will.
Breakdown of Assets and Liabilities
The first thing you need to do when preparing for a wills meeting is to list your assets and liabilities. This includes cash, investments, vehicles, jewellery, artwork, furniture, and any other personal possessions of value. It is also helpful to number the assets when you make a list. A deceased estate will refer to the collective property and assets of an individual who has passed away, including real estate, cars and cash. This estate is held in trust, transitioning from the person's death until the final transfer of assets to the designated beneficiaries.
You need to note that only the property in your name can be given away in your Will. If you own it with another person, such as your husband/wife, then the property may be distributed differently. If you own property, such as real estate, with someone else, it is important to know whether you hold the asset as joint tenants or tenants in common. These are two separate legal terms which refer to how property is owned and dealt with on the death of one of the owners. In most cases, where you purchase property with someone, you are joint tenants which means that upon your death your share of the property automatically goes to the other joint tenant. In other cases, you will be tenants in common, which means that you can deal with your share of the asset in your Will. For real estate, you can find the information about how the property is owned on your Certificate of Title.
Liabilities should also be listed, including mortgage, credit card debts, taxes, and any other outstanding debts.[1]
It's also important to make sure your executor has your list of assets and liabilities, or at least knows where the list is located. This can help ensure smoother management of the estate because the executor doesn't have to search through records or make inquiries to work out what your assets and liabilities are. As your assets and liabilities can change over time, it's a good idea to keep this list separate from your will, but handy so it can be kept up to date more easily. And make sure your executor has a copy of the list, or at least knows its location.
Executors and Trustees
By understanding these fundamental definitions and roles, one can better appreciate the intricacies of a deceased estate, ensuring clarity in the relationships between the executor, beneficiaries, and the trust that temporarily houses the deceased's valuable assets.
1. Executor
The executor serves as the individual entrusted with holding the deceased estate in trust, essentially acting as the trustee for the deceased estate trust. In this role, the executor assumes the critical responsibility of administering the deceased estate with the utmost diligence and in the best interests of the beneficiaries.[2] The executor’s pivotal role involves conscientiously administering the deceased estate for the benefit of the beneficiaries. The executor's duties encompass a range of responsibilities, including, but not limited to, organising the burial of the deceased, initiating the probate process by applying to the court for a grant of Probate or Letters of Administration, administering the estate in adherence to legal requirements, settling the debts of the estate, and ultimately, distributing the remaining assets to the beneficiaries.[3]
A woman who is an executor is sometimes called an executrix. An executor may be appointed solely or with others. Often, a person will be designated as an ‘executor and trustee’. While an executor’s role finishes with the collection and distribution of the deceased’s assets, a trustee’s role is ongoing. For example, a trustee may be required to continue to perform duties under the will for the continued maintenance of young children, or where there is money to be administered over a longer period.[4]
The general duties of a trustee and executor are to act in good faith, to act honestly, and to execute the distribution of the estate in accordance with the terms specified in the will, adhering closely to the deceased's intentions for the beneficiaries. Consider the individuals you trust and who have the capability to manage your estate responsibly. Choose someone you believe will act in the best interests of your beneficiaries. It's wise to appoint both an executor and trustee, especially if ongoing duties are required beyond the initial distribution of assets. Additionally, selecting a backup executor and trustee is prudent in case your primary choice is unable to fulfill the role. It's essential to provide the names and contact details of your chosen executors at the wills meeting. Take time to reflect on these decisions carefully, as they are critical for the management and distribution of your estate.
2. Beneficiaries
Beneficiaries are the individuals entitled to a share in the deceased estate. Typically specified in the will, if one exists, beneficiaries inherit the assets according to the wishes of the deceased. In cases where no will is present, beneficiaries often include the deceased person's next of kin, who inherit through the process of intestacy.
When considering who should benefit from your estate, think about your loved ones and any charitable causes you wish to support. You can allocate your estate in various ways, such as dividing it equally among beneficiaries or making specific gifts to individuals or organisations. Specific gifts could include sentimental items, monetary sums, or even properties. If you prefer to divide your estate equally, you can specify this in your will to ensure clarity and fairness among beneficiaries. Be sure to include the names, relationships, and contact details of your beneficiaries at your wills meeting. This information ensures that your executor can easily locate and communicate with them during the estate administration process. Take time to carefully consider your wishes and communicate them clearly in your wills meeting.
Funeral Wishes
It is very common for people to include a clause in their will telling their executor whether they want to be buried or cremated, as well as specifying the type of funeral service they prefer, if any. Before your wills meeting, it's important to consider aspects such as the location of your burial or where you want your ashes scattered. These decisions can be deeply personal and can provide guidance to your loved ones during a difficult time. Take some time to reflect on your preferences and ensure that they are clearly communicated in your will to ensure they are honoured according to your wishes.
Back-up Beneficiaries and Executors
In estate planning, it's essential to plan for contingencies in case a beneficiary or executor mentioned in the will dies before you or in the same tragic incident. Consider naming back-up beneficiaries and executors to ensure that your wishes are still carried out even in unforeseen circumstances. If a beneficiary or executor predeceases you or is unable to fulfill their role, it's important to have provisions in place for the distribution of the residue of the estate. Think about where the residue of the estate will go in such situations and ensure that your will clearly outlines these contingency plans.
Guardianship of Children
It's essential to keep an ongoing dialogue about who will care for your children in case of unforeseen circumstances, and your Will should reflect any changes in your life. Designating a legal guardian is necessary for children under 18 or dependents. If you pass away without appointing a guardian, the Court will determine one based on the next of kin.
Age of Majority
Before your wills meeting, it's important to determine the Age of Majority. The Age of Majority refers to the age at which a beneficiary gains full legal rights and responsibilities as an adult. In estate planning the assets may be held until a specified beneficiary reaches a certain adult age, known as "the Age of Majority."
The Age of Majority can be set at any age determined by the Will maker, such as 18, 21, 25, or even older. The usual motive for postponing the distribution of assets is often reservation about the maturity and responsibility of the relevant beneficiary or beneficiaries. However, it's essential to strike a balance, as setting the Age of Majority too far into the future, such as beyond 30 years of age, can be perceived as unreasonable or as an attempt by the Will-maker to exert control even beyond the grave.
Conclusion
Preparing for a wills meeting with your lawyer is a significant step in ensuring that your wishes are properly documented and legally binding. Throughout this guide, we've emphasised the importance of thorough preparation, from listing your assets and liabilities to understanding the roles of executors and trustees. By taking the time to consider your funeral wishes, appointing guardians for your children, and providing detailed instructions for the distribution of your estate, you can ensure that your loved ones are taken care of according to your wishes.
Remember, estate planning is not a one-time task but an ongoing process that should be reviewed and updated as your life circumstances change. By staying informed and proactive, you can navigate the complexities of estate planning with confidence, knowing that your legacy will be preserved, and your loved ones provided for.
And remember, Carter Dickens Lawyers is here to assist you every step of the way, ensuring that your estate planning journey is as smooth and stress-free as possible.
Disclaimer: The information provided here is for educational purposes only and should not be considered legal advice. If you need legal assistance, we recommend contacting Carter Dickens Lawyers or consulting a qualified attorney. Legal matters can vary based on laws and regulations, and it is important to seek professional advice for your specific situation.
[1] For more information on tax obligations please see, ‘Deceased Estates’ Australian Taxation Office (Web Page) <https://www.ato.gov.au/Individuals/Deceased-estates/>.
[2] Marsh v Patten (1868) 7 SCR (NSW) Eq 18.
[3] Details and resources about the duties of executors can be found on: ‘Duties of executors’, Legal Aid WA (Web Page) < https://www.legalaid.wa.gov.au/find-legal-answers/managing-your-affairs/wills-and-estates/duties-executors>.
[4] See Generally, Michael Perkins and Robert Monahan, Estate Planning: A practical guide for Estate and Financial Service Professionals (LexisNexis, 5th edition, 2021) 251.