Frequently Asked Questions

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    What is a Will?

    A Will is a document that states how you would like your assets distributed when you pass away. The document also nominates an Executor who is to be charged with the responsibility of carrying out your wishes.

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    Why is it important?


    Your Will provides you with peace of mind that your assets will be administered as you wish, no matter the size of your Estate. A properly constructed Will can also prevent any potential legal challenges against your wishes.


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    How often should I update my Will?


    While there is no time limit on the validity of a Will, a review every three to four years is recommended.

    It is important that reviews are also conducted when your circumstances change such as marriage, divorce, children or following the acquisition of property. 


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    Why update my Will?


    As your life and assets change, it is likely that you will also want to change how and how your estate is distributed. Regular updates of your Will ensure it is kept relevant and reduces the likelihood of it being contested.

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    What could make my Will invalid?


    Your Will may be revoked or invalidated upon:

    • Marriage
    • Divorce
    • Destruction of the document
    • Creation of a new Will
    • Incorrect signing and witnessing
    • You are deemed as not having testamentary capacity when the Will was written/signed
    • Someone has exerted 'undue influence' over you when you made the Will
    • It is overturned by a court of competent jurisdiction 

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    What do I need to include in my Will?


    A professional adviser such as a member of the Equity Trustees estate planning team will be able to assist you as to what to include in your Will. Some things to consider are:

    • Asset distribution
    • Who will be the guardian of any infant children
    • Whether you have any specific wishes about your funeral
    • Whether you wish to donate organs
    • Who should be the Executor of your Will
    • What powers your Executor should have
    • Is a private Executor able to manage the complexity of your Estate?
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    What will my Executor be responsible for?


    The duties of the Executor can include the following:

    • Arranging the funeral
    • Informing beneficiaries of their entitlements  
    • Liaising with family members, beneficiaries and personal contacts with regard to Estate matters, business, financial and general arrangements
    • Arranging ongoing financial support for dependents while the Estate is being administered
    • Collecting all assets and checking their insurance  
    • Preparing an inventory of assets to ensure they are properly recorded and to ensure that all taxation, legal and accounting requirements are attended to  
    • Selling any assets that need to be converted to cash  
    • Obtaining Probate of the Will  
    • Collecting all assets and registering the Executor/Estate as owner for the period of administration
    • Maintaining proper tax and accounting records
    • Paying debts, taxes, testamentary and funeral expenses as required
    • Keeping all beneficiaries informed during the administration  
    • Distribution of specific bequests  
    • Payment of legacies  
    • Establishing any special trusts required
    • Distribution of any residuary Estate to the beneficiaries
    • Defending and, where necessary, settling legal claims against the estate

    If there is potential for conflict within your family you should consider an independent trustee to ensure that your wishes are carried out with integrity and sensitivity to all parties. 

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    Why appoint a trustee company as Executor?


    If a trustee company (such as Equity Trustees) is appointed as your Executor, you have far greater assurance that your assets will be managed and distributed impartially. Trustee companies are regulated by legislation and are required to maintain numerous safeguards to provide you with security and protection. Choosing Equity Trustees as your Executor will give you peace of mind that your estate will be administered professionally whilst removing a burden from your family.

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    What happens if I don’t have a Will?


    Anyone who passes away without a Will is said to have died 'intestate'. In such cases the assets belonging to the deceased are distributed according to State law. It is possible that such laws will not be consistent with your wishes. 

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    What does 'sound mind' mean?


    Being of ‘sound mind’ is also commonly known as having 'testamentary capacity'. You may not have testamentary capacity if you suffer from one of the following:

    • An intellectual impairment
    • Memory loss
    • Dementia
    • A serious illness

     

    Doubt may also be cast over your capacity if you are of advancing years. 

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    Is it possible for someone to contest my Will?


    Under law, your Will can be altered or overturned by a court if you have failed to make adequate provision for someone for whom the court considers you had responsibility. In some states, this might include non-family members.

    Wills can also be contested if the Testator was not of sound mind or acted under pressure from others when making their Will. It can also be contested if the Will was executed incorrectly. 

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    How can I avoid a challenge to my Will?


    By ensuring that your Will is valid, current and has been drawn up by a professional such as Equity Trustees, you reduce the likelihood of a challenge to your Will.

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    What is the difference between a Power of Attorney and a Will?


    A Power of Attorney appoints a person or company to manage your assets on your behalf whilst you are alive and is a separate legal document from a Will. A Will addresses your assets only when you have passed away. 

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    Should I consider establishing a trust?


    Trusts can be an effective means of providing for specific purposes and for protecting assets from parties who may seek to claim parts of your estate. A trust established in an Estate Plan is known as a Testamentary Trust