Will writing solicitor
Why should I see a Will writing solicitor to make a Will?
The question I am asked regularly is “Why should I pay a Will writing solicitor to make my Will when I can get one much cheaper, even free”. While we all want something for nothing, quality in a Will is worth the cost.
No such thing as a simple Will
We are at the stage as a country when sadly the baby boomer generation are slowly passing away. This generation was the first to socially accept the ‘Blended Family’ whereby divorce and remarrying was accepted practice. It is also the generation which holds the most wealth, whether it be in property, shares or cash. Unfortunately, most disputes arise over money and as such it is important that your Will effectively provide for those who you intend to provide and excludes those you do not. Failing to have a properly drafted Will by a Will writing solicitor in these circumstances can potentially leave your estate open for claims against it, in the form of Family Provision Applications.
Family Provision Applications
A Family Provision Application (‘FPA’) are becoming increasingly common by individuals who feel that have not been adequately provided for under your Will. Some are legislatively entitled to be provided for such as spouses and children. However, there are some class of people who may be able to claim for not being provided for, or not being provided for sufficiently.
Who can make a FPA?
The Succession Act 1981 (Qld) provides that the three classes of people who may bring a FPA:
- Spouse which includes Husband, Wife, de factor partner, Civil Partner and a dependent former Husband, Wife or Civil Partner;
- Child which includes Child, Step Child, de facto stepchild, adopted child and an unborn child at date of death who is born alive; and
- Dependent which includes parent, parent of surviving child under 18 years, a person under 18 years.
If you have not considered a class of person entitled to make a claim against your estate, or would like some advice in this regard, please contact Becker Watt Lawyers.
When can an FPA be made?
Written notice of an intention to make a Family Provision Application must be made within six (6) months from date of deceased’s death. The application must be filed within nine (9) months from date of deceased’s death. If an Application is not made within the above timeframes may be prejudiced and it could make the process costlier, time consuming and the Court may refuse the application.
How to avoid a claim to your estate?
There are many ways in which the risk of a claim against the estate can be avoided or reduced, some of which are:
- Professional drafted Will by a Will writing solicitor;
- Distribution of assets prior to death; and
- Estate planning and asset protection framework.
Will drafted by a Solicitor
A solicitor is able to identify the possible issues which may affect your estate and draft a Will which helps protect your intentions. At Becker Watt Lawyers, we automatically draft a testamentary trust into all our Wills to ensure that your estate is held on trust for those you decide. There is no such thing as a simple Will given the range of factors as identified above which may be relevant to your individual circumstance.
Distribution of assets prior to death
If you already have a plan or idea of how you wish to dispose of your assets and you are in a position to do so, it can be a good strategy to distribute of these assets prior to death. This would avoid the asset falling into your estate and would ensure that your beneficiaries are adequately provided for. This may also ensure that no asset would become used in your estate as payment of your debts (such as Tax or bank debt other than a mortgage).
Estate planning and asset protection
In some situations, it is prudent that your Will not be a standalone document which encompasses your entire estate. It may be more relevant to set up discretionary trusts, or draft put and call options should a company be involved. Other matters which may be relevant to your situation include money and assets held in Self-Managed Super Fund (SMSF) or an industry super fund and how those are to be distributed on your death. While you still require a valid Will, these frameworks can alleviate the burden on your executor and avoid any of your estate entering the wrong hands.
As we approach Wills Week in Queensland, we urge every person to make a Will. Should you have any queries or concerns regarding your own estate planning, please do not hesitate to contact the friendly Solicitors at Becker Watt Lawyers. We offer a free consultation regarding your estate planning or any potential FPA claims you may have.
Contact Becker Watt Lawyers on 07 3269 4888 or contact us at info@beckerwatt.com.au
