PERSONAL WILLS 

Having your own personal will is a very important aspect of any Financial Plan. You may think that the need for a will only becomes important when you get old. This perception should be treated with caution as the laws of intestacy are very complex and do support a whole section of specialist lawyers in most cities of Australia. One of the reasons they get so much work is the fact that most Australians do not pay enough attention to the fact of having a will or reviewing the will if you do have one.

Below I have outlined just a few of the issues that need to be addressed when setting up your will. It can be a very complex issue especially when a person has been married a couple of times and has an extended family. 

Executor of a will This is the person who is nominated by you to look after your assets when you have passed away. They must be trusted by you, because they will assume a lot of reponsibility to deal with your assets and wishes as spelt out in your will. They also should be a person that is more than likely going to outlive you.

Power of Attorney:- A Power of Attorney needs to be appointed in your will, so your financial assets can be dealt with either before you have passed away or after. An Executor cannot legally deal with your assets before you have passed on. Quite often it is when you are hospitalised near the end, that your financial affairs still need to be taken care of.  

Enduring Power of Attorney:- This type of attorney is to make medical decisons on your behalf in consultaion with perhaps a doctor or surgeon. It is used when mental capacity has reduced to a point of you not being aware or lucid to make decisions for yourself.
The Executor and Power of attorneys can be different people if you wish or they can be appointed together. Actually it is quite often a good thing to have different people so they can help each other to seek out what is best for you at the time.

Joint Tenants / Tenants in Common:- Most family homes are held as joint tenants on the title of the house. When one tenant passes away the other needs to apply for a survivorship application to the titles office. In the state of Victoria and I believe in all other states ( check with your solicitor ) this can be done with out the need for a will. In this situation the surviving spouse assumes 100% legal ownership.
When your home is held as tenants in common with the titles office, they will not accept your survivorship application unless accompanied by probate, with the will saying that the person who has passed away has in fact left you the balance of the ownership.
Tenants in common is quite often used in business as a method of ascertaining ownership. If you are the spouse of a business partner and they own property with business partners you need to make sure your spouse's will explains how the business will release the ownership of the property and assets of the business. It also should spell out how the busines is going to fund the payment to you.
 

Survivorship:- As mentioned above this is an application that needs to be lodged with the titles office to have the title of your property altered to show the passing of your spouse and the re stamping of the title to show the surviving spouse to be the person noted on the will as the owner.

Probate:- In the state of Queensland probate is the registration of your will with the court.
A copy of probate is usually required to deal with the assets of your estate after you have passed away. Your executor will be the person who is responsible to get the probate, this is usually looked after by a lawyer or solicitor. Probate will enable your executor to gather in the assets of your estate. An example would be to sell your share protfolio, withdraw large sums from a bank account, change the registration on a car to the new buyer and many other such things that need to be taken care of.

Life Interest:- This term relates to when some one may want to leave an asset to one particular person for their life time and then it be passed on to the children of the Testator. It usually occurs with the family home, to ensure the surviving spouse cannot perhaps re marry and dis - inherit the children of the first marriage. The testator would give the right to live in the home but not the right to will it further in their own will because they would not legally own it.
This concept is used quite often in farming communities.

Intestacy:- This term relates to the fact of some one dying with out a will.
Each state in Australia has laws and procedures to deal with a persons assets. In Victoria the next of kin can apply to the state, for Letters of Administration through the court system. The court appoints that person as the administrator and then they will need to follow the statutory order of distribution of an intestate estate. It's not a situation your family should be left to deal with. Make provisions to set up your will.