General Estate Planning issues (Wills, PoA, AHDs)

[Pushka]

Unfortunately, it doesn't work that way.

You may well have a lawyer write in a will that a specific person is unambiguously excluded from being a beneficiary of the will. If say a year has elapsed since the will was written, the person just comes along (through his lawyer) and says that yes - he and the deceased did have a little falling out, but that they had made up, and he would have been included in the will had the deceased gotten around to it. The legal process then goes ahead.

The recommendation is that if one excludes people in one's will, that you write and sign a note on the will every six months, saying that you still stand firm with the provisions of the will.
Regards,
Renato

And all of that confirms the need to have the will professionally completed. Which was my point in the beginning.

 

[Milboo]

True, but in practical terms, if one leaves one's estate to spouse and children, other more distant relatives won't have much of a hope to get anything from contesting the will.

Basically, John could write up a will this afternoon and get neighbours to sign it,
Last Will & Testament Template | Free Last Will Forms (Australia) | LawDepot
leaving house and super to wife, and splitting the rest between wife and daughter - and specifically excluding any other possible claimants. Or spend $30 on a will kit from a newsagent and do the same.

Then, at a leisurely pace, find a lawyer to deal with possible complexities (ex-wife, crazy sister-in-law, nutty nephews. mistresses etc).
Regards,
Renato

If you are going to have a will that simply sees, my entire estate goes to my wife then in reality, there is little point in having a will as the Succession Act will apply i.e. die intestacy and it goes to the spouse anyway.

If you want part of your estate to go to children and they are under 18 then the testamentary trust needs to be set up properly.

 

[JohnK]

Well they may think they have a claim and that’s all it takes to hold up probate and stoke up the lawyers bills. It will be up to the court then to determine their ‘right’ to claim. And any financial or other support you may have given them fuels their right to claim.

Who would have a claim on my will other than wife/daughter, brother and parents?

Cousins in Greece who have not said a word in years? In-laws in Thailand? Unless a lawyer with other interests gets to them they won't have a clue and won't bother.

The more I think about it the simpler my will becomes.

 

[Pushka]

Who would have a claim on my will other than wife/daughter, brother and parents?

Cousins in Greece who have not said a word in years? In-laws in Thailand? Unless a lawyer with other interests gets to them they won't have a clue and won't bother.

The more I think about it the simpler my will becomes.

Anyone who thinks they have some kind of dependence or right to your estate? I never included my parents in my will. Nor brother.

 

[Renato1]

And all of that confirms the need to have the will professionally completed. Which was my point in the beginning.

That's where we are in part disagreement. You are correct in complex cases (divorces/children of other marriages/step children).

But in simple cases, when one leaves the estate either entirely to the spouse, or part to the spouse (with all his or her needs taken care of) and with an equitable distribution to the children of the remainder, a simple will isn't going to be any better than a professionally writtten will. The two will say the same thing in effect.

The way it works in Victoria, no matter who wrote the will, if a child is excluded and contests the will - assuming they haven't previously abused the deceased, he or she can as a rule of thumb (if the case goes past mediation to trial) expect to get $25,000 if well off, or up to around $150,000 if less well-off - regardless of how big the estate is. Judges are very reluctant to change wills significantly
Regards,
Renato

 

[JohnM]

The more I think about it the simpler my will becomes.

Therefore making it a very good, and very easily implemented, reason to have a will - which is where this discussion started .

 

[Pushka]

Therefore making it a very good, and very easily implemented, reason to have a will - which is where this discussion started .

Or

 

[Renato1]

If you are going to have a will that simply sees, my entire estate goes to my wife then in reality, there is little point in having a will as the Succession Act will apply i.e. die intestacy and it goes to the spouse anyway.

If you want part of your estate to go to children and they are under 18 then the testamentary trust needs to be set up properly.

There are advantages - the spouse can do things with the will in hand that he or she can't do without it (e.g. transfer shares).

I was thinking mainly of children over 18, though, I'm not sure a testamentary trust is actually required for children under 18 - they would still own what is left to them. If one leaves everything to the spouse and then he or she remarries, he or she would want to leave assets equally to his or her children (including new ones to new spouse), whereas the deceased person would have wanted his or her children to get a bigger share.
Regards,
Renato

 

[Milboo]

You’re missing the point. Children under 18 cannot get access to any gift under a will until they are 18. That means there is a trust necessary.

 

[VPS]

What are the legalities of having a proper will drawn up by a solicitor and then just amending it myself and initialling it and getting it witnessed eg I was going to leave some money to a friend's kid but now don't want to - hypothetically speaking

 

[cove]

A colleague was appointed executor even though the 3 page Will was not signed and he was not aware that he had been selected by the deceased. Certainly not ideal but it can happen.

 

[Pushka]

What are the legalities of having a proper will drawn up by a solicitor and then just amending it myself and initialling it and getting it witnessed eg I was going to leave some money to a friend's kid but now don't want to - hypothetically speaking

I’m not sure I’d risk that if it was important to me. I thought they had to be pristine.

 

[Milboo]

What are the legalities of having a proper will drawn up by a solicitor and then just amending it myself and initialling it and getting it witnessed eg I was going to leave some money to a friend's kid but now don't want to - hypothetically speaking

You have to do the amendment via a codicil. But this has to be done carefully as you can invalid the codicil.

If you want to change a will the best thing to do is simply do a new one.

 

[Pushka]

Seems like our will will be requiring modification....

 

[Flying mermaid]

We had wills done when Dr FM was born and then ignored the issue for many, many years. A few years ago we went to Bartier Perry in Sydney. Told them what we were trying to achieve and they drew up comprehensive wills, POA etc. I have a fair bit of good jewellery and I got Ms FM and Dr FM to divvy it up and then the list was an addendum to the will, so I can change it as things are added. I was entirely happy with them.

We ended up with a testamentary trust and while we are trying as hard as possible to spend our money before we die, as we don’t know when that will be, we felt we needed to have that just in case there are assets left.

We were also concerned that if one person died, the other could be vulnerable to new partners, con people, so half the assets will go into the testamentary trust when one person dies and those are protected. The testamentary trust also protects the assets in divorces for the kids.

The kids have copies of the wills and we will leave it to them how they divvy up the income - which could of course led to disagreements, but we do trust them to work together.

The wills also specified that the assets will be split between any grandchildren once the last child dies.

 

[love_the_life]

The chap upstairs died a month or so back, apparently didn’t have a will but has a large number of trusts for his businesses and properties. Also was up to his third wife. It appears that it’s going to get very messy! We are talking quite a lot of money here,

Edit: I heard that the current wife has gone away, taking three cars with her - the RR, Ferrari and Porsche.
I strongly suspect that the apartment upstairs will be sold in the not too distant future.

Points out the importance of really thinking about what your post-death wishes are and documenting these legally.

 

[cove]

We had a financial discussion with our two sons. Afterwards I got asked about the easiest ways to sell off the art and jewellery.....to fund trips to English Premier League.....
They don’t have a sentimental bone in their bodies so the only hope is they end up with great partners.

 

[Flying mermaid]

We had a financial discussion with our two sons. Afterwards I got asked about the easiest ways to sell off the art and jewellery.....to fund trips to English Premier League.....
They don’t have a sentimental bone in their bodies so the only hope is they end up with great partners.

This is why only the girls are getting my jewellery

 

[cove]

I understand that better now Flying mermaid.
This thread got us talking about spending a bit more.

 

[tgh]

We have failed to overcome a lifetime of penny pinching and the kids inheritance continues to grow.. not good...