Willpower for Will Making – the top excuses for delaying making a Will debunked
by Macrossan & Amiet
August 6, 2021
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In accordance with section 9 of the Succession Act 1981 (Qld) (“the Act”), the minimum age for making a Will in Queensland is 18 years. There are some exceptions to this rule, but it is widely accepted that all adults with capacity should make a Will when they turn 18.
In contrast, a large proportion of adults do not have a Will. With the assistance of a solicitor, the process of making a Will can be simple. The complexity of your Will itself will depend upon what assets you currently hold.
If a person dies without a valid Will, they are said to have died intestate. The intestacy laws in Queensland are dealt with under Part 3 and Schedule 2 of the Act. These provisions set out the entitlements for the next of kin of an intestate person. In addition to this, if you had a valid Will and have since been married, your previous Will is revoked by your marriage according to section 14 of the Act. There are some exceptions to this rule, one being if your Will was made in contemplation of your marriage.
As a twenty-one year old with very few assets myself, it is understandable why the younger generation has a perceived hesitation associated with creating a Will. Although it can be a morbid conversation, it is a necessary one nonetheless. Regardless of your age, if you have a substantial estate, having a Will can make the process of administering your estate far less burdensome on your executor, surviving beneficiaries and relatives.
1. “I do not want to think about dying…”
“I do not want to think about dying” is a common response heard in practice when adults are asked whether they have a Will. On the face of it, drafting your Will can be an overwhelming process. The easiest place to start is by listing out your assets and any specific wishes you may have. An example of these includes bank accounts, properties, shares, cars, or other valuables you hold (and how they are owned) or if you have any specific burial wishes. We will be able to incorporate these into a formal Will which will satisfy the relevant provisions of the Act.
2. “I do not know what my life will look like when I am old…”
A common misconception younger adults hold in relation to their Will is that it is for when they are at a more advanced age. One of the most important things to remember when considering your wishes is that your Will should be drafted to reflect your life is at the present time. Your Will can then be reviewed whenever your circumstances or the circumstances of a person mentioned in your Will change, whether it be due to marriage, divorce, having children or other similar events. Your Will can be redrafted to reflect those changes.
3. “I do not have any assets…”
Two important assets that are often overlooked are superannuation and life insurance. Superannuation may form part of your estate if a binding death nomination (“BDN”) to elect your Legal Personal Representative (the executor of your Will) as the beneficiary has been executed. If you do not have a BDN in place, you may instead have a preferred beneficiary nomination in place which acts as a guide for the Trustee of your superannuation fund. This means that the Trustee can use their discretion to pay your super to someone else who may have been financially maintained by you. If you have superannuation, you should implement and update your BDN at the same time as you review and update your Will. Further, the payout from a valid life insurance policy could significantly increase the size of your estate. Without a Will, your surviving next of kin will be required to obtain Letter of Administration from the Supreme Court to be able to receive your insurance. The process of obtaining Letters of Administration can be a costly exercise and could diminish the size of your estate for your next of kin.
Regardless of whether you believe you do not have any assets, passing away with a valid Will in place will likely result in a simpler estate administration process for your grieving relatives to navigate after you have passed.
4. “I do not care what happens to my stuff…”
Although at this stage of your life you may not care about what happens to your belongings, it is still important to prioritise making a Will. Making a Will is not a time-consuming exercise and as stated above, applying to the Court for Letters of Administration can be a time consuming and costly process.
5. Other important factors to consider when succession planning
In addition to executing your Will and arranging your superannuation, implementing an Enduring Power of Attorney (“EPOA”) is an important step to include in your succession plan. Your EPOA is a critical document which comes into effect if you lose capacity. It allows for most decisions to be made by your Attorney/s on your behalf. The capacity assessment guidelines were updated in November 2020, and although these amendments do not render older EPOAs invalid, it serves as a useful opportunity for people to review, update or create their EPOA.
It is important to let your close family and friends know that you have made a Will and an Enduring Power of Attorney and inform them where the originals are located should it become necessary to make decisions on your behalf during your lifetime or administer your estate after you have passed.
If you have a Will or Enduring Power of Attorney, we recommend reviewing their contents every 12 months or if your health and/or financial situation change significantly.
If you would like to make or amend your Will or Enduring Power of Attorney, or want to discuss your succession plan, please telephone our office to arrange an appointment with one of our skilled team.
About the author
Macrossan & Amiet
Macrossan & Amiet Solicitors is one of Queensland’s oldest law firms. It has been serving the people of Mackay and the surrounding districts since the late 19th Century, providing quality legal services to all of its clients.
About Macrossan & Amiet Solicitors
For over 100 years, Macrossan & Amiet Solicitors has been a leading local law firm in Mackay, with offices in Proserpine and Cannonvale servicing the Whitsundays region. Our experienced solicitors provide professional legal services to individuals, families and businesses across regional Queensland.
Whether you need representation in court, assistance buying or selling property, or advice on protecting your assets, our Mackay lawyers are committed to achieving the best possible outcome for you.
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