Can you create an effective will without seeking legal advice?

Arty wants to know if he can create a will without the help of a lawyer.

Creating a will without legal help?

Estate planning lawyer Rod Cunich offers guidance to Arty, who wants to know if he can create a will without seeking legal advice.

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Q. Arty
I'm a fellow who has lived outside Australia much of my life. And this time it's been 10 years. I'm getting older and concerned about what would happen to my nest egg should I die.

Can I write a will and leave it in a special place among belongings? I keep on seeing here in YourLifeChoices that I would need to have it done in Australia with a solicitor.

I am thinking to come back at some point soon. Could it be done anywhere in any state given that I come from Sydney originally? Would I simply front up to a solicitor? Is there no way to avoid a solicitor? If not, what would the solicitor's fees look like?

I don't have a big nest egg, but it is enough for me that it goes where I wish.

I know this may sound a bit naive, but that is actually the truth of it. I've lived overseas for so long and don't have Australian connections. I believe I will not be able to draw a pension because I have read you have to be residing in the country for 10 years before you can receive it.

A. Arty, many people do successfully complete a (do it yourself) DIY will kit and produce a valid will. In the main, they are people who have small or modest wealth, have uncomplicated family affairs (e.g. no blended family), no taxation complications surrounding their deceased estate and manage to find their way through the technical requirements of drafting a will and executing it.

Putting aside the fact that a significant number of people who do DIY wills get the technical issues wrong, the bigger difficulty is assessing whether you have personal and/or financial affairs that require specialist attention when drafting your will. None of us know what we don’t know, and if you make a mistake it won’t be discovered until it is too late to fix it, as you won’t be around.

I’d recommend you at least seek advice from an estate planning lawyer about your needs. If you only need a simple will then you have the option of engaging a lawyer to do it or doing a DIY version.

If, however, you need special clauses in your will because your affairs are not covered by the very generalised clauses found in DIY wills, then you’ll have to engage a lawyer to draft a will for you.

I know very little about your affairs, but the fact you have lived/worked overseas suggests to me that it is essential that you find out, before drafting your will, whether you need to address the potential myriad of taxation and succession issues that can arise due to:

a) being a tax payer in another country, and/or

b) owning property in another country, and/or

c) having beneficiaries who might live overseas.

Some countries have taxation and succession laws that will impact how your estate will be administered in Australia, while others don’t.

Engaging a lawyer may cost you money at the outset but could save your estate significant sums in the long run. Types of will can vary from cheap DIY kits (from about $50) through to lawyer assisted wills (from about $400) through to much more expensive options for a complex will required by complex situations.

Regardless of the cost, you should aim to achieve value for money, and this means having a Will that is suitable, not one that is merely cheap.

You can prepare a will in any Australian state or territory and it will be effective throughout Australia. On your death, however, probate must be obtained in the jurisdiction/s in which the property is located.  

This answer is general information only, not specific legal advice. You should not rely on it without specific advice from an expert who can review all the relevant documents and circumstances.

Rod Cunich is a lawyer with more than 30 years’ experience in estate planning. If you have a question for Rod, email it to [email protected].

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    Disclaimer: This information has been provided by Rod Cunich and should be considered general in nature. Seek legal advice before acting on this information.





    COMMENTS

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    ozirules
    18th Mar 2020
    11:44am
    Arty, there is no guarantee that your money will end up where you want it to go no matter whether you do a DIY will or hire a lawyer. The only way to guarantee that is to spend it or give it away while you're still breathing
    Mez
    20th Mar 2020
    10:06am
    It certainly appears that way!
    johnp
    18th Mar 2020
    11:50am
    Interesting read.
    One comment I would make is where it said "get the technical issues wrong".
    It is ludicrous that technical issues can override what is usually fairly explicit in the intentions contained in the way a will is worded. That is the common sense intention of the writer of the will.
    adbob
    18th Mar 2020
    12:57pm
    "Rod Cunich is a lawyer with more than 30 years’ experience in estate planning." so he would say that wouldn't he.

    Easy money for lawyers, who hate more than anthing the sort of courtroom dramas we see depicted on TV and love more than anything a quiet consultation and the production of
    a supposedly bespoke document, produced mainly by copy/paste.

    The main technical issue is to make sure you allow for others mentioned to die other than in the order anticipated - eg if one of your children pre-deceases you does their share go to their own offspring or back into the kitty - or what if they don't have any offspring etc. It's not that hard - and most ordinary people's situation is no different from anyone else's.

    Lawyers nowadays are advising everyone to get an Enduring Power of Attorney and writing them with ridiculously loose definitions of what Mental Incapacity (or whatever means) which gives rise to the current epidemic of Elder Financial Abuse. Look at what happened to Norman Wisdom when he started to lose his marbles - a very rich man who could have bought in whatever help he needed.

    Easy money writing them and more business down the track,if the elder person is lucky enough to have anyone batting for them 'on the outside" once they've been carted away "for their own good". Convicted murderers have more rights than care home inmates.

    It's a big industry.
    jan
    18th Mar 2020
    3:37pm
    I agree with ozirules. My dad in the UK as his will written up by a solicitor. He is giving the family house to my nephew in UK because he thinks he will look after my mum with dementia. Surely the solicitor would need permission off my mum to transfere the house to my dad before she got dementia 5yrs ago? If my nephew was sincere he would agree to look after my mum without being paid. My mum will need the house money if she needs to go in an home.
    jan
    13th May 2020
    11:56am
    Hi Rod. My dad in the UK as told me he is leaving the house to his grandson. My mum as dementia and every year I visit my parents to give my dad a holiday as he cares for my mum at home. The grandson is in the air force and rarely visit, but calls my dad saying he's no money. My mum may one day need the house to pay for her accommodation in a nursing home if I can not bring her to Australia. Can I contest the will.


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