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Writing a will: Do you need a lawyer?

Writing a will can ease stress for both you and your loved ones when you die. And it’s not as hard as you think.

Talking about death and dealing with grief can be a challenging and complex situation, especially talking about your own death.

Psychologist Breanna Jayne Sada says the thought of not being around for our family and friends is confronting. “Every individual might have their own reasons for avoiding doing their will,” she says, “but essentially it comes down to accepting that death is a reality of life.”

Breanna recommends trying to make it easier for ourselves, and our families, by changing our perspective when it comes to getting our affairs in order. “Creating a will doesn’t mean you’re going to die soon,” she says. “It just means that when you die your loved ones are going to be provided for. And knowing there’s some consideration for them can be comforting to them and to you.”

It’s a sentiment that Jeff Roberts, 61, understands well. “It comes down to the fact that, at various stages of your life, you think more about your mortality,” he says. “And I wanted to make it easy and straightforward for the people I’m leaving everything to. That’s really important to me.”

For Jeff, making sure his will was in place and easy to understand was key to his peace of mind. “I don’t want it to be a great burden when I die; I want it to be as organised as possible. I’ve never done one of those do-it-yourself wills,” he says. “I’ve always gone to a lawyer because I wanted to make sure it was done correctly.”

Do you need a lawyer to write a will?

While do-it-yourself will kits can be found on websites, in post offices and from some life insurance companies, lawyer Andrew Simpson, national head of wills and estate planning at Maurice Blackburn Lawyers, doesn’t advise using them. “It’s a legal document; it needs legal advice to go with it,” he says.

According to Andrew, some of the errors people make when they do their own will include not signing the document correctly, not getting it witnessed correctly, and trying to bequeath assets or part of their estate they think they own, but don’t.

“We see all kinds of unusual requests or provisions in homemade wills that just won’t work,” he advises. “What that creates is a massive conflict after the event. It takes longer to resolve, it costs more, and creates heartache.”

STEP 1: WRITE YOUR WILL

“For a relatively small outlay,” Andrew says, “you can get a will that you know will be valid and you know will deal with your scenario at that time.” Though fees can vary, Andrew says you can organise a relatively simple will with a lawyer for $500–$800. He advises updating your will every five years, or when new life events happen, such as buying a house, marrying or having children.

STEP 2: ACCOUNT FOR ALL SCENARIOS

Try to think of possible future scenarios in your family’s story. For example, you may leave your assets to your partner, but explain in the will that in the event of your partner’s death, those assets go to your children. In the unlikely scenario in which you die together with your family, such as in a car accident, what happens then? In this eventuality you may want to name someone outside of your immediate family members, or a charity.

STEP 3: CHOOSE AN EXECUTOR

The next step is to appoint an executor, who is the person you name in your will to administer your estate – your money and assets.

The executor will take charge after your death and get a grant of probate. This is permission to access your legal documents, collect your assets, make sure your bills and debts are paid, and then distribute the estate according to the instructions in your will.

Choose someone you trust to be the executor of your will, who will be able to administer your estate according to your wishes. Don’t forget to tell your executor that you have chosen them, so they can be prepared. Andrew recommends speaking to your executor about any instructions for your funeral, as well as any unusual aspects of your will, such as leaving someone out who may expect to be in.

STEP 4: ORGANISE YOUR POWER OF ATTORNEY

Next you need to prepare for a scenario where you’re not of sound mind or unable to make decisions due to being injured or sick.

“I’ve always taken the view that estate planning is made up of two parts. One is the, ‘What happens when I die?’, meaning the will,” explains Andrew. “The other part is, ‘What happens if I’m incapacitated or just unable to make decisions?’”

A way to prepare for this is to organise a Power of Attorney, so that someone can act on your behalf to make financial and legal decisions. You can appoint more than one power of attorney.

STEP 5: WRITE A CARE PLAN

A care plan can help to direct your health care if you’re seriously ill or injured. You may want to include instructions around life support, resuscitation on life support, pain relief and organ donation. Put your preferences in writing by completing an Advance Care Directive and nominating someone to make medical decisions if you can’t. Talk your wishes through with the person you nominate, and give both them and your GP a copy of your care plan.

You can find more information and Advance Care Directive forms at advancecareplanning.org.au

STEP 6: STORE YOUR DOCUMENTS SAFELY

Lastly, Andrew advises also drafting a document listing all your passwords and accounts such as:

  • Automatic payments
  • Bank account details
  • Debts, including loans
  • Insurance
  • Investments
  • Superannuation.

“It’s a good idea to put that kind of information in an envelope and store it with your will, saying, ‘Open in the event of my death’,” or similar, he says. Passwords are particularly important as without them, your friends or family may not be able to access your phone, computer, social media accounts or emails. If you’re concerned about security, you may wish to store these documents in a secure place such as a safety deposit box or with your attorney.

What happens if I don’t have a will?

If you pass away without a will, or with an out-of-date will, each state has different laws on how your estate would be distributed. “Typically [the government] looks for next of kin to try to find the nearest, closest relative,” says Simpson. “The estate will go to that person or that group of people. That can be a very tricky exercise, particularly if you’ve got people all over the world.”

Words by Lucy E Cousins
This article originally appeared in the October 2018 issue of HCF’s Health Agenda magazine.

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