“Nothing is certain but death and taxes,” so they say.
Neither of these events are ones I particularly look forward to (unless I am getting money back at tax time of course). Nor are they topics I really discuss except to my accountant once a year, or from time to time when a mortifying, gruesome death comes to my attention on the news and I announce that that would be the worst possible way to die.
Although I get my tax done efficiently and honestly (I hope you’re listening ATO), my effectiveness on the ‘death’ front isn’t as commendable. While sometimes intriguing and detailed, my death conversations aren’t really very pragmatic. On the plus side, I have decided the ways in which I would definitely not like to die (like I have a choice), but on the negative side, I have not got a plan about what would happen if I did. And it seems I am not the only one.
According to numerous studies conducted In Australia on the prevalence of wills, including one by the Australian Securities and Investments Commission, it is estimated "nearly half" of people in Australia die without a will. The most likely group to write wills are “older people with significant assets” (old, rich people) which I am most definitely not. For me, this is why I think I have never gotten around to writing one.
Up until a few years ago I wasn’t a home owner, and my sole major asset was a Daewoo Matiz (like Kel’s car from Kath and Kim). In other words, I had no need to write a will.
But now, a few years later I do own a house, my car has been upgraded, I have collected more expensive possessions but most importantly I have become a mother. However, I still do not have a will. Much to my embarrassment and for the final nail in the coffin (pun intended), neither does my husband.
Again, I do not find myself alone in this situation. According to the Real Insurance Family Protection survey published in April 2017, 56 per cent of parents haven't created a will. That’s right, over half of the parents out there have no ‘official’ plan about what would happen if they were to die. And of those that have completed a will, two in five of them have failed to appoint guardians for their children in the event of the parents' deaths.
As much as we don’t want to have to face the fact that we will one day die, the reality is we will (sorry to bring the doom and gloom) and life can bring us many surprises (which aren’t all good). So the bleak reality is, especially as parents, we need them! Here are some will facts:
According to Caitlin Fitzsimmons (The Editor of Money in the Sydney Morning Herald and The Age) if both parents of a child/children under 18 years of age were to die and without a will with a nominated testamentary guardian, the guardianship of your children becomes a matter for the family court. Basically, if you don’t have a ‘rubber stamped’ legal will with this ‘testamentary guardian’ (the person who decides who your children should live with), it could mean they end up with someone you wouldn’t have actually chosen or wanted to raise your kids. The decision would be out of your control. And who wants a Count Olaf raising your kids?
Another eye opening fact according to the NSW Government's Trustee & Guardians website is if you do not have a will and are separated but not divorced, your ex-partner is still legally entitled to your assets whether you have children or not. The amount that they are entitled to would vary depending on the value of your estate and the state you live but it benefits the spouse (or ex-spouse) percentage wise.
So if you want to leave all (or specified amount) of your money and assets to your children this needs to be specified in a legal will. If you are in my poorly organised shoes and haven’t written a will, the good news is that you may not even need a solicitor or to spend lots of money to write one.
According to Legal Aid Victoria, to make a valid will you must do the following things:
1. Make a will in writing.
2. Sign the will in front of two or more witnesses.
They also suggest that it is a good idea to date it at the time of signing and templates you can use available on their website. Alternatively, you can purchase a Will Kit for less than $40 from State Trustees. This also includes simple explanations, checklists and step by step instructions.
I’ll take two please.
Have you written a will? Tell us in the comments section below.
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Top Comments
My husband and I couldn’t agree who our kids would live with if we both died and so we didn’t do a will for years. However, I found out that you don’t actually have to say who they will live with. You nominate a Guardian and that person gets the final say about where they live - but they don’t necessarily have to live with their Guardian.
For example, if we died tomorrow, one kid is in daycare and one in early primary school, so it would probably make sense for them to live with my Mum who is close by so they don’t have to change schools. But Mum is getting older so they might move to their aunt’s place as they get older and go to high school.
We made my sister-in-law the Guardian and my sister the Trustee of our Estate who decides how our money is distributed, effectively ensuring that both sides of our family have a say in where our kids would live and what financial support would be required.
Our family lawyer told us that it does not matter a jot who you nominate to look after your kids in your will if you both die (assuming a couple), the courts decide what they feel is best at that time regardless of what is on paper.
You need to get a new lawyer.
Don't think so. Cited many cases to prove the point. The courts will not just place kids automatically with someone you may have nominated years prior.
Sorry, I was much to flippant with my comment. Withdrawn.
The guardian nomination is certainly not binding, but carries a lot of weight.
Please get a will people, I had to organise my dad's will whilst he was in the hospital bed and then try and find another lawyer when the chain he initially started using when he had the surgery 6 months earlier wouldn't do a hospital visit even though we were willing to pay for it. Anyway, long story short, he came home to die, we were given around 2 months. He lasted 3 weeks and my last conversation with him was getting him to sign the will. He never spoke or ate after that and died 4 days later in a palliative care facility he went into the next day. I'm glad I was able to get it done more for my mother and sister who is still a child, but I don't think I'll ever get over that final conversation. Funnily enough, my mum refuses to even thinl about getting a will...not happy about the whole 'its not how we do things in our culture', you've both fucked me up for the better part of the year!!!