It's very important that you make a Will to ensure that, on
your death, your assets pass to the people that you have chosen.
Before you make an appointment to see your solicitor with a view to
preparing your Will, you should consider the following points:
1. What assets actually pass under your
Not everything that you own at the date of your death passes
under your Will. As a general rule, any assets held in solely in
your name pass under your Will - for example cash, real estate and
However, there are exceptions to this rule. Any death benefits
payable under your superannuation and the proceeds of any life
insurance policies usually fall outside of the terms of your Will
as they are paid to your nominated beneficiary. In some instances,
superannuation and life insurance are paid to your estate,
therefore passing under your Will. It is best to take professional
advice in order to check how your superannuation and life insurance
policies pass on your death.
Joint assets may also pass outside of your Will. In order to
determine how the asset passes, you need to understand how the
asset is held. If the asset is held as "joint tenants" on
the death of a co-owner, the asset automatically passes to the
surviving co-owner, not in accordance with your Will. The most
common example of this is a joint bank account.
If an asset is held as "tenants in common" your share
of the asset passes in accordance with the terms of your Will, not
to the surviving co-owner. Real estate is sometimes held as
"tenants in common" although it can also be held as
"joint tenants." If you're unsure what your real
estate falls under, check your Certificate of Title as this will
clearly state whether the property is held as "tenants in
common" or "joint tenants."
2. Appointment of Executors
Executors are the people who are responsible for administering
your estate upon your death. They make sure that your debts are
paid and that your assets are distributed in accordance with the
terms of your Will.
You can appoint as many Executors as you wish. Ideally, your
Executors should be younger than you or at least of the same
generation. It is not advisable to appoint your parents as your
Executors as they are likely to predecease you.
If you appoint only one Executor, it is prudent to appoint a
substitute Executor to step in if your original Executor is unable
to act. If you appoint more than one, make sure you choose
Executors who have a good relationship and will be able to work
together when administering your estate.
3. Appointment of Testamentary Guardians
If you have children under the age of 18, you should think about
appointing someone to act as their legal Guardian. The Guardian/s
would take care of your children until they reached adulthood if
you were to die before they reached 18 years of age.
4. Burial/cremation clauses
Do you have strong wishes about whether you are cremated or
buried? Is there a specific place that you would like to be buried
or to have your ashes scattered? If so, you can include a direction
in your Will which gives instructions to your Executor on how you
wish your body to be treated on your death.
5. Specific gifts
Are there are any specific gifts that you wish to give? For
example, you may like to leave an item of jewellery such as your
wedding ring to someone in particular, or a lump sum of money as a
cash legacy to your grandchildren or a charity.
Your Will can include particular clauses to ensure that any
specific gifts you wish to make take effect.
6. Disposal of the "residue" of your
Everything else that you own once your debts have been paid and
any specific gifts have been given, is usually referred to as the
"residue of your estate" or your "residuary
estate." Think about who you wish to nominate to receive the
residue of your estate.
Often people wish to leave the residue of their estate to their
husband or wife. If your husband or wife dies before you, you may
want your children to inherit the residue of your estate. Often
people, for one reason or another, do not make equal provision or
provision at all for their children, especially where there are
estranged children. This should be discussed with your solicitor in
order to minimise the chances of someone making a family provision
claim against your estate because your Will did not adequately
provide for them.
More information on making a Will is available in our Plain
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