In preparing your will, there is a process which we go through to ensure that your will is valid and carries out your wishes. This article provides an overview of what to expect when you come to Transitus Legal for your Estate Planning.
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Questionnaire
Firstly, when you get in touch with us, we will send you a questionnaire to complete. This form prompts you to obtain and provide certain information that you need to prepare a will, and gives you a place to write down names, addresses and contact details of the relevant people you intend to name in your will. This form provides a starting point for our formal instruction taking process during our initial meeting with you.
Verification of Identity
By law, we need to formally identify each one of our clients. Therefore, even if we have known you for over 20 years, we will ask you to bring your passport and driver’s licence with you to our office, to complete the VOI process. If you do not have this documentation, a birth certificate, Medicare card or other photo identification card will also work to verify your identity.
Capacity
In order to legally make a will, you must pass a “test”. This is a determination or assessment by a legal practitioner of your testamentary capacity, as set out in the case of Banks v Goodfellow. Originally decided in 1870, the requirements for testamentary capacity have been reviewed regularly in more recent cases and found to be still appropriate.
Assessing your capacity to decide how to deal with your estate, adds a further level of protection to you and your estate, to ensure that there is no influence of coercion, duress or even illness. The test covers the following:
- Does the will-maker understand the nature and effect of making a will?
- Does the will-maker know the nature and extent of their assets?
- Does the will-maker know and understand the people who may have a claim on the estate, and the moral obligations they may have to each of them?
- Is the will-maker affected by a mental disorder which may influence their will-making?
Taking Instructions
During our initial meeting with you, we will have a discussion about what you want to do with your assets when you die. The discussion will include:
- What assets you have – We need to make sure that everything you have is dealt with properly. Some assets such as trusts or companies, have specific methods of transfer, while others may have tax implications for the beneficiaries. Some assets may not be part of your estate, such as superannuation, or you may have overseas assets which need to be dealt with separately.
- Who are the people in your family, and who you should be considering – This does not mean that you cannot leave someone out of your will, if that is what you wish, but in order to carry out your wishes effectively, we must discuss it.
- Who you want to be guardian of any minor children – This can be a difficult decision, however, if you are having trouble making a choice we have some suggestions that you may consider.
- What you want to do with your assets – This sounds obvious but it may be a more complicated discussion than you initially think.
- What style of will you need – Some people need a more complex will to cover issues like blended families, disability trusts, potential addiction or family law difficulties. If this is appropriate to your circumstances, we will be able to further discuss these types of wills in our appointment.
We can take instructions from you during a face-to-face meeting in our office, in your home (or nursing home, hospital, workplace – wherever suits you), or via a video link. The important part is that we have the discussion with you personally.
Sending out Drafts
Once we have your instructions, we will draft your documents and send them to you to check and amend. We find that most people ask further questions or make changes to their drafts at this stage. We also enclose our account at this stage.
Making Amendments
We want to make sure that your will reads well and says exactly what you want it to say. Therefore, we encourage you to clarify anything you do not understand and ask for changes to be made if necessary.
Signing
In order for your will to be valid, there are some very specific signing steps which need to be followed. Amongst other steps, it needs to be signed by two independent adult witnesses, who need to be present at the same time as the will-maker and each other. If there is a dispute about the will these two attesting witnesses may need to provide evidence in Court that the steps have been followed properly.
We usually arrange for you to sign your will in our office, so that we can make sure the steps are followed properly. If this is not possible, we can provide instructions or make alternative arrangements.
Safe Custody
As part of our Estate Planning service, we keep your original will in Safe Custody, with no additional cost for this service. We will send you a certified copy of your documents to be kept with your important papers. When your original will is needed for probate, it will be provided to your executor at no additional cost.
If you are ready to make your will or update an existing will, please contact our office to make an appointment.
Author: Lynda Babister