At Business Legal Lifecycle, we want you to be informed about the legal requirements in regard to your business, and part of this is learning why you shouldn’t write your own will.
No one wants to spend time thinking about what will happen after they die, but taking the time to draft a will with a lawyer is important to ensure that the people you love are taken care of – and know what your wishes are – after you’re gone.
Here are some of our top reasons why writing your own will is a bad idea, and some points to look out for when drafting a will with a legal professional.
Business Legal Lifecycle educates business owners on their legal risks and makes legal advice accessible to all business owners.
We deliver this through our Legal Risk Assessment , Jeremy Streten’s Amazon best-selling book The Business Legal Lifecycle (in Australia, United Kingdom and the United States), and our Educational Courses.
We are the only legaltech website that actually tells you what you need to do to reduce your legal risks and we empower you with the knowledge and understanding of what you need so you can work with your lawyer with confidence.
Can I Write My Own Will?
Yes, in Australia, you can write your own will by purchasing a ‘Will Kit’. Although you can readily find Will Kits, the team here at Business Legal Lifecycle recommend against using one.
They may not work for your individual situation, and if there’s any contest over the will in court, the fact that you used a kit could be held against you, as they are not as detailed and stringent as a will done by a lawyer. In fact, there are a host of reasons that you shouldn’t write your own will, and we will run through them here.
How Important Is a Will?
A will states where your assets will go when you die. If you have a valid will, your executor goes through the probate process and distributes your estate in accordance with what is written in your will. If you jointly hold property with another person, such as a spouse, then probate is not required unless substantial assets are held under only one name.
However, there are many common situations where having a valid will is necessary to distribute your estate correctly and take care of your family and loved ones.
If the probate court deems your will to be invalid, then there will likely be a significant delay in distributing your estate. Additionally, increased legal and court costs may create financial hardship or emotional anguish for your family members.
Many people believe that their situation is uncomplicated and that they can draft a DIY will; however, consider the following situations to decide whether they might apply to you or someone you know.
8 Reasons Why Writing Your Own Will Can Be a Bad Idea
It can complicate the continued operation of your business
If you want your business to keep running after you die, then you need to think about and plan for what will happen to it. This includes appointing someone as executor in order to carry out your wishes. You can do this by writing a will with the help of a lawyer.
If you don’t have a valid will that appoints someone to take over your business and manage it, there could be expensive consequences, like wasted rent and staff costs. Without a validly appointed manager, your family may suffer needlessly and your other assets could be in jeopardy.
There are strict requirements for signing and witnessing wills
To ensure your will is valid, it must be signed and witnessed correctly. If either of these requirements is not met, your will may be invalid.
Your will only becomes effective when it includes all the assets and liabilities you will have once you die. If not, your loved ones may struggle to uphold your final wishes.
If you add to your will or make any changes after it has been made, the will may become invalid and unable to deal with your assets effectively. Speaking to a legal expert will help mitigate any issues with the validity of your will.
If your homemade will is lost or can’t be found, it may create legal issues down the road
After signing a will with a lawyer, they may offer to keep it in their custody or provide you with copies. They may also advise you of other services or methods to safely store your will.
The lawyer will keep an original copy of your will or an electronic copy. This way, if you lose the original, your family can go to court and ask that the wishes in the copy be accepted as valid.
If there are no certified copies of the will, your family will have to go through a more extensive and expensive process of applying to the probate court for a grant of administration, and this is one reason that writing your own will might be a bad idea.
If you and your partner are not married, it can get complicated
If you are in a de facto relationship, rather than purchasing property as joint tenants, you and your spouse may have decided to buy it together with equal (or unequal) shares.
If you do not have a professionally validated will, your property might not get transferred to your de facto partner or children as intended. Also, other people could make claims to your estate, which would be expensive for your loved ones to litigate.
Writing your own will can cause future wills to be thrown into contention
If you made a will when you were younger, perhaps leaving all of your estate to your then partner in a fleeting moment of passion and your circumstances have since changed, creating a new will does not automatically revoke your old one.
If your latest will is invalid, the court may rely on your previous will instead, which could result in other people receiving assets from your estate than you had planned. This would require costly and lengthy court proceedings for your grieving loved ones.
If you own property solely in your name, it is hard to transfer ownership with an invalid will
We’ve all lived lives before settling down, and some of us even manage to buy property while single.
Without a will or any valid appointees, if you die owning property solely in your name, there are many people who could be eligible to apply to the court to take control of your property. This person may not necessarily manage your property and estate as you intended and, as a result, your partner most likely will have to participate in costly court proceedings to gain ownership of the property.
Leaving superannuation in your will can complicate things
In most circumstances, your superannuation will be paid out to whoever you have nominated in your policy, regardless of what is stated in your will.
If you die with an invalid will, your family will have to jump through more hoops to access your superannuation. Despite the fact that you can express in your will who you would like to give your estate to, there is only a limited number of beneficiaries who are legally allowed to receive superannuation benefits once you have passed away.
Leave it to the experts
Hiring a lawyer to help you prepare your will has many benefits, including:
- Ensuring that your Will meets all the legal requirements for it to be valid where you live.
- Keeping your specific circumstances in mind as they work with you to write your will, and include any relevant terms or clauses.
If you’re an Australian business owner, we can help. Business Legal Lifecycle delivers expert advice through our Legal Risk Assessment, Jeremy Streten’s Amazon best-selling book The Business Legal Lifecycle (in Australia, United Kingdom and the United States), and our Educational Courses.
What to Watch Out for When Drafting a Will With Your Lawyer
Here are some top points you’ll want to include or at least consider when drafting a will with your lawyer.
One of the most critical aspects of creating a will is determining how your assets will be allocated upon your death. This can be a difficult task, as you and your lawyer need to consider both your current financial situation and your future needs.
When allocating assets in your will, it is essential to consider your beneficiaries. Make sure to list all the people you want to receive assets and their relationship to you. You should also consider any special circumstances that may apply, such as if a beneficiary has medical bills or is disabled.
Once you have determined your beneficiaries, you and your lawyer will decide what assets they will receive. You can leave specific items to specific people or allocate a certain percentage of your estate to each beneficiary. Whichever approach you take, your lawyer will ensure that your wishes are clear and unambiguous to avoid any confusion or conflict after your death.
Guardianship of children
Guardianship of children is a legal arrangement in which a person or persons are granted the authority to make decisions on behalf of children under the age of 18.
In the event that both parents die, the guardianship provisions of a will come into effect and the guardian(s) will be responsible for the care and welfare of the children. The guardian(s) will have the authority to make all major decisions on behalf of the children, including their education, medical care, and religious upbringing. Be sure to discuss this with your lawyer.
Power of attorney
Granting someone power of attorney allows you (the principal) to choose someone or multiple people you trust (i.e. the attorney or attorneys) to make decisions on your behalf during your lifetime.
Setting up a POA is fairly simple and can be done by getting your lawyer to include the appropriate language in your will. They’ll need to name your chosen POA and clearly state their powers. Naming an alternate POA is also a good idea. Once the document is signed and witnessed, your POA will be legally binding.
Appointing an executor
When writing your will with your lawyer, you will appoint an executor to manage your estate and fulfil your final wishes. The executor will ensure your estate is properly managed and distributed according to your wishes. When choosing an executor, it’s essential to select someone who you trust to handle these responsibilities. You should also consider whether the executor lives close by and is familiar with your financial affairs.
One of the most critical aspects of creating a will that you will consider with your lawyer is choosing who will inherit your assets. This may seem daunting, but some basic considerations can help make the process much easier.
First, you must consider who is most important to you and who would benefit most from your estate. For example, if you have children, you may want to provide for their future by leaving them with financial support. Alternatively, if you have a spouse or partner, you may want to ensure they are taken care of after your death.
Once you have identified your key beneficiaries, you must consider how to distribute your assets fairly. This may involve taking into account any debts or other financial obligations that your beneficiaries may have.
When making funeral arrangements with your lawyer, you will need to consider a variety of factors, such as your budget, religious beliefs, and any special requests. Once you have made your decisions, you will need to communicate your wishes to your lawyer and executor or designated loved one. You may also want to consider prepaying for your funeral expenses. This will ensure that your arrangements are carried out exactly as you have planned and will help to relieve your loved ones of financial burden.
We’ve spent our lifetimes acquiring possessions. Now that it’s time to write your will, you must decide how best to allocate your cherished items. Here are a few things to keep in mind when allocating your cherished items with your lawyer.
First, consider who would appreciate the item the most. If there is someone in your life who has always admired a particular item, they would likely be thrilled to receive it as a gift.
Second, think about who would make the best use of the item. For example, if you have a piece of art that you love, it might be better to leave it to someone who will put it on their wall and enjoy it every day.
Finally, don’t forget to consider sentimental value. There may be an item that doesn’t have much monetary worth but means a great deal to you or a loved one. In this case, it’s important to choose someone who will appreciate the sentimental value and take good care of the item.
Many people choose to donate to charities in their will. There are a few different ways to do this. The most common is to simply list the charity by name in your will. You can also specify a specific amount of money or percentage of your estate that you want to go to the charity. If you have certain assets that you would like to donate, such as property or stocks, you can specify these in your will as well. You may also choose to set up a charitable trust in your will. This allows you to specify how the assets in the trust should be used by the charity and your lawyer will ensure to help you draft these in a legally binding way.
Business Legal Lifecycle Can Help You Ensure that Your Business Legacy Is Taken Care of
When running a business, there are a huge variety of legal requirements that you need to understand, and that’s where Business Legal Lifecycle comes in.
Business Legal Lifecycle is the only legaltech website that keeps you fully informed on what you need to do to reduce your legal risk, including how to draft a will that is legally enforceable and that covers all aspects of your business legacy. We empower you with the knowledge to work with your lawyer and have the confidence that your business will continue to run long after you’re gone.