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Speaker
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Introduction to the Life Admin Life Hacks Podcast
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This is Life Admin Life Hacks, a podcast that gives you techniques, tips and tools to tackle your life admin more efficiently, to save your time, your money and improve your household harmony. I'm Diana Roe Roberts, a commercial and finance executive. And I'm Mia Northrop, a user experience designer, researcher and writer.
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Everyone knows there are two inevitables in life, death and taxes. And today, not to get too morbid, we'll be talking about the life admin relating to wills and powers of attorney.
Why You Need a Will and Powers of Attorney
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Hello and welcome to Life Admin Life Hacks. About half of our survey respondents don't have their will sorted. Until recently, I was one of them too. Mia, what's your will situation?
00:01:18
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My husband and I put wheels together shortly after we got married. We thought at that stage we'd had an apartment. We had a bit of super. We had a few shares. And I guess after getting married, it felt like we needed to take that formal step and get wheels and powers of attorney done. Yeah. How about you?
00:01:36
Speaker
We did actually have a will which we did while we were living in the UK because that was the first time we actually had some assets that were worth leaving to anyone. I can't really remember how we found the lawyer, but I think we got a recommendation from a friend. But we really needed to update that will when our children were born and we kept talking about it and it was such a blocker. It's always been on our to-do list.
00:01:59
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It's not the most exciting thing to do. And I guess it raises a lot of uncomfortable questions and scenarios for people. So it's not surprising that it's one of those things people procrastinate about.
Expert Insights with Lawyer Justin Hugh
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And because this is such a complex and touchy area, we decided to talk to an expert.
00:02:15
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So today we're talking to Justin Hugh, a lawyer from McMahon, Fernley Lawyers in Melbourne. Before we begin, in the interest of full disclosure, Diana recently had her will and powers of attorney drafted by Justin, and I had my will drafted through the same firm many years ago.
00:02:31
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but there's been no financial consideration for Justin to participate in the interview today. And also listeners, because we're talking about legal matters, we need to issue a disclaimer that the information provided in this podcast today constitutes general information only. It is not intended to, nor does it constitute legal advice, and it's gonna substitute for professional, individually tailored legal advice. So you should obtain professional advice before taking any action in relation to any matter discussed in the podcast.
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With that aside, welcome to the show, Justin, and thanks for sharing your expertise with our listeners today. Not a problem. Thanks for having me. So I guess let's start from the start. When we surveyed people about this topic, we were kind of shocked about how many people didn't have a will. And these are people who have kids and they have houses and they hadn't really got around to having a will drafted yet. How important is having a will?
00:03:26
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Yeah, look, it's something that can be overlooked at times. I guess no one really wants to consider what's to happen when they pass away. But it is something that is important that a lot of people should consider. The importance of it will depend on what stage of life you're currently in at the moment. So as you mentioned, someone who's married with dependents, maybe they've got a house or two and other significant assets, it's probably pretty important to
00:03:51
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start thinking about preparing a will if you haven't already done so. But if you're sort of, you know, single, with no children, the only thing that you have to your name is a bank account and a car, it might not be as important. But still, if you've got, you know, a strong intention as to who you want to benefit when you pass away, there's nothing stopping you from making a will. Yeah. What happens to your assets if you die without a will?
What Happens if You Die Without a Will?
00:04:16
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So if you die without a will, it's what's known as dying intestate. And in Victorian, which is the jurisdiction which we practice in the rules for intestacy, basically, the person that will administer your state is determined according to who you're next to kin is. So there's a list that you go down and the first, the first one that applies to you will be the person who will be responsible for administering your state. So the first one on the list would be your spouse or de facto partner. If you don't have one,
00:04:45
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and it goes down to your children. And if you don't have children, it goes down to grandchildren, parents, so on and so forth. So there's a list that you basically go down and as soon as one of them applies to you, that's the person or the group of people who would be eligible to apply for what's called letters of administration to administer to your state.
00:05:03
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Okay. So that doesn't necessarily mean they'd be beneficiaries, but they get to administer that in your estate? There is a distinction. So the administrator or the executor is the person who will basically step into your shoes when you pass away and call in assets, handle your tax affairs, and then basically
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distribute your estate to the beneficiaries. So the beneficiaries are the ones who would ultimately benefit from your estate. There's two different
Superannuation and Estate Planning
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roles that are being played. So if you don't have a will, how much harder is it for your family to
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Yeah, look, not having a will does make it more difficult, as you can probably imagine. When you pass away, it's already going to be a difficult time for your loved ones and your family members. And not having a will sort of
00:05:50
Speaker
leave this void of lack of direction for them to follow in an already difficult time. So it's definitely beneficial to have it all just for that fact alone, that it can often sort of help your family members with the grieving process in terms of making it as easy as possible for them to administer your estate. And then also it can lead to some undesirable outcomes in terms of how your estate is eventually distributed if you don't have a will, especially if you've got, you know,
00:06:19
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a complicated sort of family arrangement, blended families, things like that. Sometimes it can mean that people who you would want to benefit from your estate miss out as a result of the laws of intestacy. And does that sometimes mean that you'll incur additional legal costs because of those additional steps you might need to go through? So if you don't have a will, you know, if there's anything that a family member might want to challenge your estate, it can incur additional legal costs for the estate, yeah. I see.
00:06:48
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And there's some assets, so things like superannuation, where you might nominate a beneficiary as part of setting up your super. This question came from one of our listeners, Robin from Melbourne, and she was wondering, you know, if I haven't specified who gets my super specifically, does it automatically go to her children? If she doesn't have children, you know, could it go to an ex-husband or a brother?
00:07:12
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What does it go to some part never to be seen again that's
Creating a Valid Will
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controlled by the government? So super generally is considered quite separate from your estate, unless it's specifically mentioned in your will that you want your super to form part of your estate. And it'll also depend on sort of the, your super, uh, superannuation funds policy in terms of death benefits. Um, but generally super is considered quite separate from the estate. So it weren't necessarily for, uh,
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flow into your estate to be distributed in accordance with your will or in accordance with the laws of interstices. Okay, that's worth clarifying. So how do you draft a will? What's the process that people normally follow? A will has sort of basic principles that it needs to adhere to. Basically, in Victoria, anyone over the age of 18 can
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make a will and there are sort of form requirements that a will should take. So it should be obviously in plain, clear and plain English, easy to understand. It should be testamentary in nature, which means it should appoint at least one executor. And then it also should state who you want to leave your things to when you pass away. And it should be signed and witnessed by two people. So those are sort of the basic requirements that a woman for in your will. And does it matter who those witnesses are?
00:08:33
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are not. They just need to be independent adult witnesses over the age of 18 as well. And lots of people talk about those will kits. They can get them from state trustees. I think he used to be able to get it from the post office. I don't know if he still can. Will kits robust enough? I guess it sort of depends on how complicated your estate planning is. It will vary
When to Use a Will Kit vs. a Lawyer
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from circumstance to circumstance. If your intentions are fairly basic in terms of, for example, you want to leave everything to your spouse,
00:09:03
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And if your spouse passes away before you, then everything to your children and equal shares. That's sort of the most common type of husband and wife wills that we see. It can be sufficient to cover that.
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If you've got a more complicated set of circumstances and things that you need to consider, it might be difficult to draft a bill just using a book, and it's probably advisable to seek legal assistance in that regard. And now that we have marriage equality in Australia, are there any differences between, I guess you sort of talk about complicated situations and people who ought to know who you think are maybe de facto or separated or divorced or blended families?
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Is there anything that same-sex couples need to take into consideration, or is it truly equal now? No, it is truly equal. There are tax implications, I believe, that differ for same-sex couples in terms of the legal rights and the legal standing that one would have in a testamentary
00:10:05
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I'm setting. Defactors and same-sex couples are pretty much standard legal footing as traditional married couples. Excellent. And you hear a lot about Wills being contested often by siblings when a parent has died. I know I've chatted to friends who've had uncles and aunties in quite heated circumstances.
00:10:26
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What scenarios lead to wills being contested? A will can be contested in a number of
Contesting a Will and Reducing Disputes
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ways. Basically, anyone can contest the validity of the will itself. For example, if the will was made under duress, or undue influence, or if the will maker didn't have capacity, the will itself can be invalidated. That's one way to contest a will. Another way to contest a will and possibly the most common
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commonly found in Victoria is by way of a family provision claim. So this is where the validity of the will itself isn't necessarily a dispute, but what someone is saying is that they are someone that should have been provided for the will and they haven't been sufficiently. So that's what's most commonly found in Victoria.
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Yeah. Is there a way you can reduce the possibility of your will being contested? There isn't a way to prevent it, absolutely. In Victoria, it used to be quite open season in that Victoria was one of the states that had the widest scope for someone to make a family provision claim and that basically anyone could bring a family provision claim. The rules were changed quite recently, I think in 2015, which limited the group of people that could make a family provision claim.
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to a very, very narrow set of people. So like your spouse or the factor or children and grandchildren. It's very limited now in terms of who can actually bring a family provision claim. If you've left someone out of your will that can make the argument that they should have been provided for, nothing really that you put in your will can preclude them absolutely from bringing a family provision claim. You can't give reasons in your will as to why you're leaving someone out. But again, that doesn't sort of preclude them from bringing a claim.
00:12:12
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Gosh, have you come across that? Have you come across a world where people have been settled out and specified why? Yes, it's actually not that uncommon. You know, families do have falling outs. Sometimes a family member might have
00:12:29
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financial or drug type of issues that a parent might not want to sort of feed that type of behavior. And so there are certain circumstances or scenarios where a parent has quite clear intention to not benefit a certain family member and sometimes would advise them to make that
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reason clear in the will. Other times we would say, you know, it's, it might be better to, to have that reason in writing, but not necessarily included in the will, just include it somewhere where you exactly can find it. And when the time comes, because it can be quite upsetting to have to, to see in a will, you know, reasons why you haven't been included as part of the beneficiary group.
Understanding Wills vs. Trusts
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So it's all considerations that you move to. Yeah.
00:13:16
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Yeah, Dinah and I, when we were researching this, did sort of have a discussion around the fact that we hadn't really talked to our own parents about what their wills said and whether there were any surprises in there. I guess if people know ahead of time what the setup is, who the beneficiaries are,
00:13:34
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that when they do pass away, there's not really shock or people, you know, you can have conversations about it. But yeah, it's kind of a mind. It is a bit of a touchy subject, you know, a bit of a taboo topic to discuss.
00:13:49
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you know, who you leave in your states when you pass away. But I guess get more informed that your family is and you've got every right to sort of keep them at the loop until the time is right. But yeah, the more informed that they are, it certainly can reduce the possibility of speech later on. And the other thing that I hadn't really realised until I've gone through the process myself was that the instructions you have about ideas you have about how you want your kids to be raised in terms of the lifestyle that you'd like them to leave or
00:14:20
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the kind of activities you'd like them to be exposed to, or any things around your funeral arrangements, none of that's actually in the will itself, that's all separate instructions that can be provided alongside the will and the powers of attorney, but they're not actually in the will document. They can be included in the will, but it's sort of, those type of testamentary wishes are just that, the wishes, and they wouldn't necessarily bind your executive to
00:14:48
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to follow up. They can be included in the bill, but it's like you said, they're often found outside of the will for that simple reason that by including them in the will, it's more sort of a wish as opposed to a, yeah.
Financial and Medical Powers of Attorney
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It's an instruction. Yeah. So if I said I wanted my ashes to be shot up in fireworks over dock lands, that might not have been legally binding. Yeah, exactly. I have discretion to say that's probably not the most well for that plan.
00:15:16
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So what's the difference between a will and a trust? Because that's the other sort of term you hear bandied around, some people sort of trust. A trust, basically, you know, all wills create a trust by the way they operate, but not all trusts are wills. So trust is sort of a legal arrangement, which splits the legal and beneficial ownership of an asset.
00:15:38
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whereby the legal ownership of the asset best with the trustee who holds that asset on trust for the beneficial owner or the beneficiary. So the way that the will operates is it invest the legal ownership of your assets to your executor or trustee to be held on trust for the benefit of your beneficiaries. So by the way, a will operates a will note.
00:16:04
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necessarily sets up a trust, but there are all types of other trusts that exist, you know, family trusts, discretionary trusts, inner trusts, and not all trusts are wills.
00:16:16
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Okay, and it's the most common use of a trust, setting up something for minor dependents, if you have children. Yes, it is a very common trust. So those would most probably be family trusts, where you have assets in a pool that are held by the trustee for the benefit of those family members who you choose to include in that trust.
00:16:39
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So that can and does operate while you're still alive, whereas a will would only start to come alive once you've passed away. Yeah. And I guess the other documents that are worth putting together while you're putting your will together are financial power of attorney and a medical power of attorney. Can you talk about those documents and what they provide? Yes, certainly. Also very important documents. So a financial power of attorney authorizes your attorney
00:17:06
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to deal with your finances in the event that you lose capacity. So that's things like operating your bank accounts, signing certain legal and financial documents, selling your house, so that it does give that attorney the power to basically step into your shoes and operate your finances as if they were you. Your medical power of attorney obviously makes all your medical decisions.
00:17:30
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So, you know, common decisions that they would be tasked with is refusing treatment, the most extreme circumstance pulling the plug. What happens if you don't have a medical power of attorney but you're married? Does your spouse automatically get that right, that power of attorney?
00:17:47
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No, they wouldn't necessarily automatically get that right. I guess it would sort of be a consideration between the treating practitioner and the family is to make those types of decisions. Yeah. So it's definitely worth a conversation when you are appointing people to be your... What's the term? What are they? They're not your executor. Are they your attorneys? They would be your attorney, either your financial attorney. Okay. So you definitely want to have a conversation with them about what your
00:18:15
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Wishes would be in that scenario if you're in life support or if there's certain types of treatment that you're comfortable with. What is your preference? Because that's a very traumatic decision to be made and you'd want to be.
00:18:26
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feeling confident about what your loved one would have wanted.
Updating Your Will
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And it's a very big responsibility too, so you need to make sure they're comfortable taking that responsibility. Exactly. And the same goes for your executive in a will. You often advise clients to make sure that you have had this discussion with your executive. You don't need to let them know what's in your will, but you should let them know that we're hoping to appoint them as your executive or attorney as a situation to each fit.
00:19:10
Speaker
I've had another child since then, we've moved house, so my address in the will actually isn't where I live anymore. Yeah, important milestones that you might want to consider, at least consider in your mind whether your will needs to be updated. It might not necessarily need to be, but at least if you consider updating it, such milestones should probably be if you got married, if you subsequently got divorced, having children, or if you had a sudden influx of assets into your name.
00:19:20
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and make sure that they would be willing to act in that capacity when the time comes.
00:19:38
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or if you purchased another harm, things like that. Generally, wills are drafted to take these types of events into consideration, but obviously you'd want to make sure that more scenarios are considered, and if it does need updating, it'd be very wise to update.
00:19:56
Speaker
And where do you keep the documents once they're created? So the will is a document which the original holds a high level of importance. The court will only accept the original will when your executive goes into apply for purvey. So the original has to be kept in a secure place. Oftentimes, most law firms will have a secure, fireproof deeds room. And they'll often offer the service of storing your will
00:20:24
Speaker
free of charge. Other places you might want to consider is a bank safety deposit box or if you've got a secure safety in your home, that would be fine as well. The important thing is you should let your executive know where they can find your original will so that when the time comes, they don't have to go searching around your house to look for the will.
Choosing an Executor and Drafting Costs
00:20:45
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Yeah. Yeah. So you might have a copy at home
00:20:49
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with instructions of the original as Camptex so and so law firm or so and so bank. I think it would be good to know what people should look for if they're looking for a solicitor to help them with their will.
00:21:05
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So some firms do specialize in wills and estate planning. They will obviously have the most experience in terms of drafting a will to suit your needs, particularly if you have a particularly complex estate planning sort of in mind. But most general practice firms are able to draft fairly basic wills and powers of attorney
00:21:27
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quite competently. Obviously, you'd want to look for a lawyer who understands how you want to manage your estate. On top of that, a lawyer should be able to give you advice on estate planning and how the different ways you choose to divide your estate can impact your eventual estate and ways to avoid claims on your estate, things like that.
00:21:48
Speaker
And is there a ballpark cost that people could expect to pay that get a will and powers of attorney created? Yeah, so it'll obviously vary depending on how complex your will is. But for an individual, it can range from about three to 500 for a single will. For a husband or wife, a mirror wills, they can usually range from about four to 800 for two wills. And then power of attorneys, medical and financial power of attorneys, they can be usually done for about $200 to $300.
00:22:21
Speaker
So I guess in terms of creating peace of mind and clarifying who you want your executives to be and saving your family a whole lot of hassle and drama and concern, if you passed away, that that sort of fee is pretty palatable. I mean, it's a document that's going to be around for hopefully decades and decades and decades. So it's worth the investment. It can save you a lot of money down the line, as you mentioned.
00:22:48
Speaker
in terms of avoiding disputes or issues with the court accepting your sort of homemade will. Well, thank you for revealing some details of what, yes, I'm considered to be quite a taboo topic.
Personal Reflections on Wills
00:23:02
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It's kind of morbid, but it's one of those important things that as an adult, you just have to address, especially if you want to save the drama from your parents or your children, give a direction about how you would like your
00:23:16
Speaker
estate to be dealt with and how you would like your end of life to be dealt with as well. It really is about easing the burden on those you leave behind and having a clear will by its clear sense of direction for them to follow to make sure that your last wishes are satisfied. Fantastic. Justin, thank you so much for your time. It's been great to chat. Thank you, Mia. Thank you, Dana. Thanks, Justin. Thanks. So, Diana, what were the key takeaways for you from Justin's interview?
00:23:46
Speaker
Although I did recently get our wheels sorted, the conversation did remind me to just probably check in with my parents and also get my husband to check in with his parents. If there is anything we should know and where they actually keep their wheels, I really think that you can bring that conversation up when you tell them about your own wheel. And I might also tell my kids where our wheels stored. Yeah.
00:24:10
Speaker
have to have that conversation with my dad for sure. I've got no idea what's going on with him. My mum is the kind of person who talks about that kind of thing all the time. But it also made me reconsider the guardians of my kids because
00:24:24
Speaker
I did my wheel in 2005, 13 years ago, and I had my mum and my mother-in-law as guardians. But they're now in their 70s and our siblings, since that time, they're more established. They've had their own kids and are now familiar with parenthood. So it's probably at least worth a conversation about whether my mum and mother-in-law would be up for having that guardianship role or whether we should be asking someone a bit more.
00:24:51
Speaker
someone younger basically, more physically up to it. It might not change anything, but at least it will keep that conversation flowing. So Diana, I know you recently got around to doing your will to update it for the kids, but you know, you're a very organised person and I was surprised you held back for so long given the age of your kids. How did you finally get motivated to do it?
00:25:13
Speaker
I think reflecting on it now there were probably two issues that were holding me back. The first one was finding a lawyer and the second one was choosing the executor and I did actually have a few false starts of asking for recommendations from people who I trust who I thought would have a will and would be able to recommend a lawyer but actually so many of my friends
00:25:36
Speaker
Even ones who I think are quite organised and responsible didn't have a will. So for that first issue, I guess I finally got a recommendation from you, Mia. And then once I made the contact with the solicitor, the whole thing happened so quickly. And really, we just did it all via email.
00:25:54
Speaker
And my husband and I were so pleased that we finally got around to doing it, that we actually combined the process of signing it with going into the solicitor's office, signing the wheels and having a beautiful lunch together, having a celebration because we finally removed it from our to-do list.
00:26:10
Speaker
Yeah, I kind of say that finding the lawyer was the blocker for me. I was more worried about the kinds of questions I'd be asked and the kind of information I'd need to provide because you kind of want to go in there and have an informed conversation and know what directives you want to give. So we had a family friend who was a lawyer, so we just asked him for a recommendation and he made an introduction. And similarly, we did most of it via phone and email and just went in person to do the final signing.
00:26:36
Speaker
The full process probably took us about four weeks by the time we visited the witnesses and got them to sign it and talk to the executors. But I was sort of more focused on, so what do I need to know? I guess I need to know what assets do I have? What's their value? Where are the documents for them? Do you think about who has a stake in my estate? Obviously there's parents, my spouse, kids, whether I wanted to give anything to my siblings.
00:27:01
Speaker
If I do want to distribute stuff, is it like just a straight up dollar value or is it proportion of my assets going to different people? And I still wanted to note some cherished things. So a few bits of jewellery, a few like air-woomy things that have a bit of emotional value. I wanted to specify who I'd like those to go to.
Peace of Mind with a Well-Organized Will
00:27:18
Speaker
I also had to think about who the executors or attorneys would be.
00:27:24
Speaker
So that, you know, in a situation where I have either died or incapacitated, who's going to be able to cope with those decisions at such a traumatic time and advocate on my behalf. So obviously, you know, there'd be people who, you know, are going to have your best intentions in mind, but sometimes
00:27:40
Speaker
people can be very busy or just too upset to be able to think clearly. I had to think about the guardianship of the kids and that prompted an interesting conversation with Justin about you know who do we think was going to be a good fit for the kids and would they be comfortable with who has the ability to cope with them financially and emotionally and physically and also have the kind of lifestyle and values that we'd agree with.
00:28:03
Speaker
And also keeping the location in mind because we live in Melbourne, my husband's family's in Canberra, you know, would it be better for them to stay here? Would it be better for them to go there? We talked about charities, whether we were going to bequeath to any institutions or charities. And then we have the doozy of the conversation, which is about
00:28:21
Speaker
You know, what is our position on different life-saving interventions and do not resuscitate directives? At what stage do you want life support to be turned off? How do you want your body to be dealt with? Do you want it buried or cremated or scattered? And if so, where? You know, how do you want the funeral to go down? It's a hard conversation to have, but it needs to be done. It needs to be done. And I love the way that you went and did all this diner and then went out to lunch to celebrate afterwards.
00:28:51
Speaker
Yeah, we did have one thing that kind of worried us a little bit was really choosing an executor. Because when my grandmother died, I actually did quite a lot of work some, you know, a long time ago, but there was a lot of work involved with the tax situation, tax side of it in particular. And so I was really worried about making sure that we chose someone
00:29:11
Speaker
who was, wouldn't really be overwhelmed by that kind of type of work. And so we actually, after sort of a long debate, chose a friend who's, you know, an executive and the same age as us. So, you know, hopefully he'll never have to fill that role as an executor. But if we did both happen to pass away, I feel confident that it wouldn't be too much of a burden for him. Whereas, you know, over time, obviously we'll think about changing our will for our children to be executors.
00:29:39
Speaker
Yeah. And I think that's, you know, brings up, you know, why would you pull together a will? Because I think a lot of people think, well, you know, the state steps in and divvies things up and people can test things anyway.
Getting Started with Your Will
00:29:49
Speaker
So what's the point? But if you can assign an executor who is going to be able to administer this calmly and efficiently, it does save your family a lot of concern and worry and stress at what is quite a traumatic time. So it's going to give you peace of mind.
00:30:07
Speaker
that things are being administered as you would hope and the rest of your family peace of mind, that sort of bit that that's being taken care of. And as Justin mentioned, you're saving a lot of potential legal fees or other sort of related financial fees if you tie things up a bit more cleanly from the start.
00:30:26
Speaker
And the key benefit for me has been really getting that item off my to-do list, that real peace of mind. I've definitely spent more time over the last 10 years talking about it and thinking about it than it actually did took me to actually complete the process. So it feels like such a relief to have that really important item checked off my to-do list. Yeah. So listeners, if you don't have a will, start the process today. If you have a will that is outdated,
00:30:53
Speaker
Get in contact with a lawyer that you may know. If you don't know any lawyers, ask friends or relatives, anyone who has done or run a small business or been divorced, they will likely have a solicitor contact who can either do it for you or recommend a specialist in probate law and estate planning.
00:31:11
Speaker
Well, that wraps up our episode for today. Remember, if you don't have a will, consider if a will kit will be enough for your situation, and if so, download one and complete it today. There'll be a link in the show notes. If not, contact a solicitor to start the process, either one you already know, or ask for a recommendation from friends and family you trust. Also, consider having a discussion with close family members about the status of their wills and power of attorney, and if there's anything you should know.
00:31:39
Speaker
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00:32:12
Speaker
At Kroger, we know the minute a tomato is picked, the fresh timer starts. The sooner we get our produce to you, the fresher it is. That's why we've shortened the time from harvest to home for our tasty tomatoes, strawberries, and salads. So no matter how you shop, you have more time with your fresh produce. Kroger, fresh for everyone.