"Do I need to wait until my baby is born before making a Will?" "Do I need to update my Will now I am pregnant?" These are just some of the questions answered in our Q and A for Wills and Estates in South Australia.
Starting a family brings significant change, and is a time when many people re-evaluate their Will and estate arrangements. Jane Miller, an accredited family law specialist and head of Tindall Gask Bentley’s Wills and Estates legal team, answers common questions asked by couples who are about to start a family.
Q: I’m pregnant, do I need a Will?
A: Absolutely. One of the main reasons people have a Will is because they have dependants who they want to look after if they were to pass away. A Will ensures that a trusted individual (or individuals) is given the role of Executor, who manages the assets and arrangements according to the person’s wishes. There’s probably no better time to prepare your Will than when you are pregnant and about to bring a dependant into your life.
Q: What should I think about putting in my Will?
A: When you prepare a Will, you need to decide who your assets will be given to. Consideration also needs to be given to what your assets are, including superannuation and life insurance entitlements. Also, assets that you might think are yours may not actually be part of your estate, such as a house which is in joint names. It is important to get legal advice about this.
The other main decision is who to appoint as your Executor. That is a person (or people) who administers your Will and ensures that your assets go where you want them to go. This is a particularly important role if you have young children, because that person acts as their trustee and looks after their inheritance until they become adults.
People often appoint guardians for their children in the Will, and other wishes including whether they would like to be buried or cremated.
Q: I did a Will a few years ago, do I need to update it?
A: You may need to. It is important to turn your mind to the provisions in your Will, because circumstances may change along with your wishes. If the Will was prepared prior to marriage or having children, then it is likely to need an update to include these family members. It also quite possible that you may have prepared a Will that already contemplates the fact that you might have children in the future, but it is important to review your situation and make any necessary amendments.
Q: Can I make my Will while I am pregnant, or do I need to wait until after my baby is born?
A: It’s actually preferable to make the Will while you are pregnant because you will naturally have more time on your hands to prioritise it. It doesn’t matter if you don’t know the gender or name of the child, because the person in charge of drafting the Will can write it in a way that allows for your baby, along with any other future children.
Q: How do I make a Will?
A: It is always best for a lawyer to prepare a Will, to ensure that it has been produced correctly and that it will be legally valid. If you prepare a homemade Will or use a Will kit you cannot be certain that it has been correctly completed to comply with the relevant legislation. Making a Will usually involves just two appointments that take less than an hour each, and is often not as costly as most people expect.
Q: Is there anything else that I need to consider?
A: In addition to preparing a Will, you may wish to prepare an Enduring Power of Attorney and/or Enduring Guardian documents, which allow you to nominate who would make financial, medical and lifestyle decisions for you if you were to become incapacitated.
Author: Jane Miller
To organise your Will in Adelaide or Perth contact Tindall Gask Bentley’s Wills and Estates team on (08) 8212 1077.