Smart Consumer: Where there's a will... there's also peace of mind for your loved ones
Published 12/10/2012 | 06:00
John Hearne advises on the best way to ensure your wishes will be fulfilled after your death
Making a will is one of those jobs that tends to be perpetually long-fingered. Nobody likes to dwell on the fact that there will come a time when they won't be here.
"There's no evidence," says solicitor Simon McGarr, "to show that making a will causes you to die. Given people's reluctance to do it, you'd think there was, but it really is worthwhile dealing with all of these things when you're in the full of your health."
If you die without having made a will, your estate will be distributed according to the Succession Act: two thirds to your spouse and one third among any children. If you've no children, your spouse gets everything. If you are survived by your children only, your estate is divided equally between them. If you have neither children nor spouse, your parents get everything, and if they're dead, your brothers and sisters get it.
Chances are that this one-size-fits-all approach to inheritance will be inappropriate to your needs, and more particularly the needs of those you leave behind.
"This is the one time you can put together your wishes and have control of your assets after your death," says Caroline Browne of Holmes O'Malley Sexton Solicitors. Once you know what you want to do, the process itself is relatively simple.
Making a will dramatically reduces the potential for conflict after you're gone. When guitar legend Jimi Hendrix died intestate in September 1970, the subsequent legal wrangles over his estate went on for 34 years. When Amy Winehouse died without making a will, her entire fortune went to her parents, leaving ex-husband Blake Fielder Civil with nothing.
Ms Browne says there are several life events that should trigger the making of a will. Acquiring property is one. Having kids is another. You use the will to specify who you want to be guardians of your children if the need arises. You should make a will if your marital status changes, or if you're in a long-term relationship but haven't married.
"If you have a child with special needs, you should always do a will," says Ms Browne. "If you have no will, your estate could be given to them and they could lose their benefits. The law is inflexible in this regard and will not take into account the special needs of the child. Sometimes the benefits would be more important to a child with special needs than receiving a large share of the estate."
While the will itself is a relatively simple document, it's only valid if it fulfils certain key conditions. It's not enough just to write it all out on a bit of paper and stick it in a drawer. A non-standard will must have its validity proven in court. That's not going to be cheap.
The executor is the person who gets the job of making sure it's carried out professionally.
You'll need a list of legacies (gifts of money or goods), a list of devises (gifts of real property such as land) and you'll also need a residuary clause. This sets out how any leftover estate will be distributed. It's also vital to include the date and your signature at the end of the document.
Once the will is made, it's still a good idea to look over it every few years to make sure it's up to date. Actor Heath Ledger made a will before his untimely death, but he never got round to updating it to include his daughter Mathilda.
Remember, too, that any changes must be signed, dated and witnessed.