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Should I Update my Will?

Should I Update My Will?

Wills are generally drawn so that they only need to be changed if circumstances change but there are a number of matters that could give rise to a need to update or change a Will or to look at other asset planning strategies.

Changes in business or personal structuring

Certain asset protection or structuring strategies such as the use of discretionary trusts and superannuation funds can result in the need to revisit your Will.  It is important to note that assets in these structures will often skip the Will and will not form part of your estate.  As a result, with family wealth being in superannuation funds and discretionary trusts, it is important to look at means of ensuring that the wealth held in those structures is dealt with in the fashion intended.

As an example, if your wealth is in a family trust, you might need to give the shares of the trustee company and direct in the will that they take your role of appointor so as to ensure that they have control.  You might also need to ensure that they are a permitted beneficiary under the trust, particularly if it is a bloodline trust.

Another issue which is often overlooked is the creation of beneficiary loans under trust arrangements.  Those loans will need to be paid and could result in a beneficiary receiving more or less than what is intended.

The estate lawyers at QBM Lawyers are familiar with these structures and the need to deal with them in the context of estate planning.

Changes in the circumstances of a beneficiary

Many changes in the circumstances of a beneficiary will result in the need to update a Will.  These things could include:

  • A beneficiary having children – you will need to decide whether if the beneficiary passes on, you want the gift to be given to their children or spouse;
  • A beneficiary might die or suffer from other circumstances as a result of which the gift is pointless;
  • The beneficiary might be bankrupted as a result of which, if the gift is made during the bankruptcy, it will form part of their bankrupt estate and available for creditors;
  • You could have a falling out with the beneficiary and not want them to benefit, or simply fall out of touch with them.

Your circumstances might change

Your personal circumstances might change as a result of which the Will should be reconsidered.  As an example, a separation or divorce or remarriage should trigger the need to update your Will.   The needs of children is something which should be dealt with in a Will and accordingly should trigger reconsideration of an existing Will.

Receipt of a large gift or financial benefit might warrant updating of a Will.

Changes in the circumstances of your executors

Circumstances affecting your executors might warrant the changing of a Will.  As an example, an executor might be bankrupted or could become ill or they might no longer have the tolerance to deal with the issues that come with being an executor.  They are all matters which should be borne in mind in considering whether a Will should be changed.

A professional named as executor such as a solicitor or accountant might retire or (in the case of a lawyer) be struck off, or you might not deal with them any longer.

So should I update my Will?

Whether these changes bring about the need to update a Will might depend upon the nature of the change and how the Will was originally drawn.  Regardless, reconsidering your Will in the context of your changing circumstances is something that should be done at least every couple of years, and upon the happening of any major event.  If you are asking yourself  “Should I update my Will?” then it might be a good sign that an update is due.

For any Will related enquiries, please contact Peter Muller at peterm@qbmlaw.com.au or on +61 755 74 0111

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