5 ways to avoid disputes over your will
No one enjoys the time-consuming – and often emotional – task of creating a will. Working out how you plan to distribute your estate and assets is often put to the back of our minds as we focus on the here and now. But if you neglect your will or create one that is not legally valid or with insufficient thought about what is fair and appropriate, it can quickly lead to disputes between family and loved ones.
So, set aside some time to create a robust will that is as fair as possible and tailored to your own circumstances. Here are five tips to get you on the right track.
1. Be reasonable and fair in how you distribute your estate
It’s easier said than done, but if you create a will that distributes your estate in a fair and equitable manner, you will undoubtedly reduce the chances of loved ones contesting it. It is up to you how you wish to pass on your estate and the law recognises this core right. But like to so much in life, it is not as simple as that. In this area, it is never “black and white”. The key is balancing your own individual wishes for who should get what with a fair and reasonable outcome for your loved ones.
For example, if you have more than one child, then consider the base case as an equal split between all children and ask yourself why would I not do it that way? Of course there are many considerations to take into account when asking yourself that question – for example, perhaps one of your children has given up their career to care for you in your old age, or maybe one of your close friends has gifted you a large sum of money to help you in business or with a property purchase or maybe one of your children has medical needs that require significant funding for the future.
Your unique situation will ultimately influence how you choose to distribute your estate. Just remember that uneven distribution can – and often does – lead to conflict later.
2. Communicate your wishes clearly
At the end of the day, what you include in your final will is your decision, and your beneficiaries ought to accept and respect that. But that doesn’t mean you should hide the truth about how you plan on distributing your estate and assets if not in a way that your loved ones are expecting.
The truth is often easier to swallow when it comes directly from the source. No one wants to find out they have been cut out of a will after their loved one has already passed. So if there are major decisions you have outlined in your will – particularly if it relates to uneven distribution – communicate that to your family and loved ones. They may better understand where you are coming from, and they can ask questions that you wouldn’t be able to answer in death. Indeed they may say something that you have not considered before and help you refine your plans. It is one of those times when I say the “Don’t die wondering” quote is apt. Communicate our wishes and intentions and you have the best chance of ascertaining if disputes over it may arise after your death.
3. Update your will regularly – especially after a major life event
Your will is not a set-and-forget document. Especially if it has been several years since you created it, the will – and your wishes – could be outdated. Another risk is that certain major life events can automatically change your will and therefore override your original intentions. So it pays to review your will from time to time, especially after you have gotten married or divorced, had children, acquired properties or businesses, or one of your beneficiaries has passed away.
Doing so can not only reduce the chances of someone disputing your will, but it will also make the distribution of your estate and assets much smoother. That’s one small comfort that will be greatly appreciated by your loved ones during their time of grieving.
4. Get help from an estate planning lawyer
While technology has enabled Australians to access low-cost will-writing services, the truth is that poor estate planning can create rifts between your family members at a time when they should be mourning your passing.
The easiest way to avoid any legal missteps is to involve a professional from the start. An estate planning lawyer can guide you through the most common challenges and provide their expertise to ensure all your legal documents are correct and actionable.
If the cost of hiring a lawyer just to create a will is off-putting, think of it as an investment in your loved ones’ futures. And remember that the cost of contesting a will in Australia has been said can cost more than $120,000 – which is a burden no one wants to place on those they love.
5. Don’t let emotions guide your choice of executor
Nominating your trustee or executor is a decision that shouldn’t be taken lightly. Your first thought might be to choose one of your children or a close family member, but consider the potential can of worms that could open during a time of incredible grief. Many consider appointing a combination of loved ones and more independent “friends” with professional backgrounds to help any loved ones who are an executor to make sensible financially sound decisions with the estate.
We can never really know how someone will react in the wake of a loved one’s death, so think about whether handing over such a large responsibility to another person might be more suitable. Again, having an estate planning lawyer at this stage can help you choose the most appropriate executor for your will.
The death of a loved one can be an incredibly emotional and turbulent time, especially when finances are involved. At Flying Change, our mediation and dispute-resolution services are designed to give all parties an opportunity to negotiate without the constraints of a formal legal process. Call 0418 676 977 to learn more about how we can help you avoid will disputes.
