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Creating a Will is something that you should only consider when you’re older- said no Wills and Estate Planning lawyer ever! There’s a common misconception that planning for your death is something that you should only start to do once you’re nearing retirement and that it’s irrelevant if you’re anyone between the ages of 20 and 60 something…

Firstly, a disclaimer – you can actually be too young to have a Will. If you’re under the age of 18, this article likely won’t apply – unless:

• you are married;
• you are anticipating marrying and your Will is expressed to be in contemplation of that marriage however, the Will is only valid if and when the marriage takes place; or
• a court authorises the making of a Will.

For those of us above the age of 18 – I’m not here to scare you and I understand that the process can be daunting and last on the priority list when you’re young, footloose and fancy free. However, here are 10 important reasons why you should consider making your wishes clear now.

1. life (and death) happens

If there is one key lesson we can take from 2020, it’s that as much as we plan and make choices to guide our lives in certain ways, curveballs happen. Disease and accidents don’t discriminate based on age.

2. your worldly possessions may go to the last person you would want to have them

If you die without a Will (referred to as intestate), where your assets (properties, money, cars, etc) go is set out by your State or Territory legislation – and that may mean that it doesn’t end up with the person you would like them to go to.

Whilst legislation varies between the States and Territories, your assets will generally go to your direct family. For example, if you are married or in a defacto relationship and your only children are also the children of that partner, your partner will receive all your assets. Complexities can arise in instances where you have separated but perhaps are not officially divorced, in blended families or where you have children from different relationships.

If you are single, the directness of your relatives is considered with any children receiving the inheritance followed by parents, siblings, grandparents, aunts and uncles, and cousins. Where there are multiple children, parents, etc, the assets are divided equally.

If you have no living relatives, your assets will go to the State under Succession Law.

3. your de facto may not be considered

In a committed relationship but not married? This is one area where your de facto partner doesn’t automatically receive equal rights to that of a spouse. In NSW, unless you have been in a de facto relationship for a continuous period of two years or that relationship has resulted in the birth of a child, your partner will not be entitled to any part of your estate under the laws of intestacy.

4. the executor appointed may not be your ideal person

Not especially close to your family? An executor is tasked with administering your estate. They should be trustworthy and organised so it pays to have a say while you can! If you haven’t appointed an executor, Succession Law will dictate who is entitled to apply to administer your estate. If that’s more than one person and consensus can’t be reached on who should apply, the court will appoint an administer, generally one agreed to by the majority of those with an interest in your estate.

5. not having a will increases the likelihood of a dispute occurring

Once your assets have been distributed, applications can be made by other parties for a portion/larger portion. For instance, your assets may have gone to your spouse but your parents feel that they are entitled to a share.

This process can be costly, time consuming and damaging to relationships.

6. you have children under the age of 18

If you have children under 18 years of age, a Will can ensure that your children will be cared for by a caregiver/s of your choosing, and in the way you want them to grow up. If you die intestate, guardianship will go to the other parent however, if they aren’t around or refuse the role, the court will appoint a guardian.

7. you care about what happens to your pets

Companion animals (dogs, cats, rabbits, etc) are viewed as personal property – not children, despite how you may view them – under Australian laws. They will be treated in much the same way as your other assets with beneficiaries named as above. Again, this may mean that they won’t be cared for by the person you want and in the way you want.

8. business as usual is a priority

If you’re a business owner and would like control or ownership of your business to go to someone else in the case of your death, put it in writing. At the very least, appointing someone for business continuity whilst administration of the estate occurs is important.

9. the send off is important

Burial or cremation? A playlist and finger food for a wake? If you have ever thought about how you would like your funeral to unfold, have firm opinions on what happens to you when you are gone, etc then you need to make your wishes clear.

10. giving is important to you

If you’re generous with friends or charities, dying intestate means that your assets will go to either your family or the State.

Still think you’re too young to have a Will? Preparing a Will provides peace of mind. You may not need it for decades to come but you can rest easy knowing that if something happens, you have outlined who you want inheriting from your passing.

For more information please contact Macpherson Kelley’s Wills and Estates team.

The information contained in this article is general in nature and cannot be relied on as legal advice nor does it create an engagement. Please contact one of our lawyers listed above for advice about your specific situation.