Rest Easy Knowing — Conversations on Death, Dying & End-of-Life

Fiona: 00:06 Today I'm speaking with a lawyer. So this is just a reminder that advice is general in nature. If you need advice, it's probably best you go and speak with a lawyer about your own personal circumstances. Today on Rest Easy Knowing, we're focusing on something most people know that they should have, but far fewer truly understand. A will. A will isn't just a document, it's a legal mechanism that determines who receives your assets, who's responsible for managing your affairs, and often what a family experiences after you've gone, whether that's clarity or conflict. To unpack this, I'm joined by Julia Tutt, Senior Associate at the dedicated Wills and Estates firm DeGroots, Wills and Estates lawyers. Julia holds a Bachelor of Laws and Arts degrees from the University of New England in Armadale, New South Wales. And Julia was admitted as a lawyer in the Supreme Court of New South Wales in 2016 and completed her Masters of Applied Law, majoring wills and estates in 2022. Welcome Julia. Julia : 01:19 Thank you. I'm so happy to be here. Fiona: 01:21 So lovely to have you here. Okay, so let's get stuck into this. Why do wills actually matter? From your perspective, is having a will important? Julia : 01:33 I mean, I am going to provide a biased answer. I mean, my um way of making money is that they are important. But going back to the fundamentals, and this is a line that I always say with clients the more paperwork you do now while you're alive, the less paperwork your loved ones, friends, family will have have to do once you've died. So the main piece of paperwork is the will. So a will is a document that sets out who you want to be representing you in death after you've died, step into the shoes of this person who's died, and also where your estate's gonna go. And your estate is essentially anything you own in your name, a property, um, like as in real estate, bank accounts, shares, jewelry, TV, furniture, anything that you own, you're directing where that goes when you die. It's a very important document. Does that include pets? It does include pets. Pets are, I hate to break this to people, but they are just property. Yes, they are part of the family, but ultimately it is just property. Um, and I have gifted pets in wills before or set up funds for the benefit of the pet or gifted money to a beneficiary specifically because they're gonna get the dog, so they're getting 50 grand with that dog. But yes, ultimately it is property. But yeah, the will is the most important document in that regard. That's why you need it needs to be in writing and two witnesses and signed on every page. You can't do-sign a will. There's also, you know, there's ways how can you tell? Fiona: 03:13 Like if it went to court, how could a court tell that that a document was docu-signed? Julia : 03:19 Oh, docu-signed, well, because it would have DocuSign on it. Ah, yeah, simple. Yeah. And look, a lot of legal documents are docusigned nowadays. When you buy and sell property, you often are not signing anything physically with a pen, but wills are different. There are COVID did bring in um audiovisual witnessing provisions because we couldn't meet in person to sign wills. Um, and some states have kept those provisions, New South Wales included, but not all states. Fiona: 03:48 Are there any common misconceptions about wills? Julia : 03:52 Yes, there can be many misconceptions. One is um say you've got three children and you want to leave one child out because they're estranged and you know the relationship isn't great, and you want to provide for the other two. A lot of people think that if you just give that estranged child a legacy of $10,000 or $10, I've seen contemplated, that prevents them from making a claim against the estate. That's not true. It doesn't work like that. You also so that's a misconception. I feel like that's something that a friend of a friend of a friend at the pub heard, and it's not true. Uh, the other one is that you could maybe gift that ten dollars to that person and they only receive that ten dollars if they don't make a claim. That's against public policy. You can't do that. You can't contract someone, you know, make it conditional on them not making a claim. I guess a misconception is that you know you can only gift your estate to certain people. That's not true. You can gift your estate to any number of people, entities, organisations. I guess the other misconception, I guess, is the inverse of this. When you don't have a will, people think that if you don't have a will, it's all going to go to the government. It's not, yeah. The only time it does Does any of it go to the government? That is only if no one, no family, you have zero, you have no one, then it does kind of eventually get to the trustee and guardian. Fiona: 05:21 Who's responsible for for discovering whether there's family out there? Julia : 05:26 So that is also a good question. I just spoke about I was talking to someone about funerals and burial rights and etc. And so when you die, you don't have any rights in your body anymore, right? You've you've died. So that's when the executor in the will or the next of kin steps in. So if you have done a will and you name an executor, then that person is responsible for the funeral and then organizing the estate, etc., calling in assets, distributing the assets in accordance with the terms of the will. If you die without a will, then the intestacy rules in New South Wales and in Victoria and the rest of the country, it's based on family, right? So spouse, de facto spouse, same thing. Children, grandchildren, parents, grandparents, siblings, then cousins, and it goes down the family line. So if you don't have anyone, it's the homeowner or the like the place where that person's died. So say if someone's in a nursing home and they don't have any next of kin, cousin, spouse, like within anyone, then it would be the person who, like the nursing home business, would essentially have to organize the funeral. And yeah, uh, you know, that's where genealogists get involved. You know, you look at birth certificates, death certificates. It might be that they had a number of family members, but they've all died before this person. It does happen, but fortunately it's not it's not super common. Fiona: 06:53 I imagine it's rare. Julia : 06:54 And it's not, I don't see it as much in my practice because I work in a private firm. If I worked for the trustee and guardian, that might be different because a lot of trustee and guardian wills, they've gone, people go to the trustee and guardian because they don't have anyone else. Fiona: 07:08 Just checking in there. What is the trustee and guardian? Julia : 07:12 So the trustee and guardian is we call it in New South Wales, it's the New South Wales trustee and guardian. They're essentially the state-based trustee who can act in the event that no one else is around. Fiona: 07:24 So they're one in each state. Yes. And they so the laws are different in each state? Is that look? Julia : 07:32 I don't know exactly. They probably all follow the same, like the legislation would be different per state and territory, but the guiding principles would essentially be the same. Fiona: 07:42 Yeah. Wow. Yeah. Okay. So let's get back to actually preparing the will. What do people need to have ready before they see a lawyer? Julia : 07:52 Firstly, yes, I would like them to see a lawyer. You can come across all sorts of issues when you do your own will because you don't know what you don't know. You don't know that gifting something like this or the what the specific wording that you use in that handwritten post office kit can actually cause major issues down the line. So, yes, firstly, I would recommend that people actually go see a lawyer. What you need to basically, what the lawyer's going to ask you about is your family circumstances. Who who do you have in your life, who's dependent on you, who might expect something from your estate, and who do you want to give your estate to? They might say, Yep, I've got I've got all these people in my life, but I don't actually want to give it to them. I want to give it to the cat's home. So have a think about who you who you do want your estate to go to. Most of the time, it's to family members, by and large. So the lawyer is going to ask you about that. I always write a little family tree. And the other thing that the lawyer is going to talk to you about is your financial circumstances. So, what do you actually own that if you were to die tomorrow is going to form part of your estate? So, your house, how is it owned? If you do own a house, do you have any debt on that house? You know, is it mortgaged to its full value pretty much? So there's actually no value in it. How much have you got in the bank? Do you own those bank accounts jointly with your spouse or with someone else? Do you manage money on behalf of someone else? Shares, Bitcoin, do you have Bitcoin and other crypto assets? Things like that. And we're going to ask about that. And we're going to ask about your superannuation as well. Another misconception is that people think that super is just theirs to deal with, and they could just gift their super to the cat home. And it's just money in a bank account, but it's just in this separate little bit. No, it's a bit more complicated than that. Superannuation is money that you and you know your employer have been putting aside on trust for your retirement andor death. So it's held on trust for you for those that specific purpose, and so it's treated differently. And technically, it's a non-estate asset. So you could have a bank account with $100,000 in it in your sole name. You could give that to whoever you wanted, essentially, and it's going to automatically form part of your estate. But your superannuation, that's technically a non-estate asset because you don't own it. The superannuation trustee owns it. Oh, that's so interesting. On behalf of you. Fiona: 10:17 I thought I owned my super. Julia : 10:19 Yeah, you don't. Julia : 10:21 So there's rules associated with that, and there's limitations as to kind of who you can actually give it to or how they're treated tax-wise, who gets it tax-free or not tax-free. And I guess I would also say all of this information is all general in nature, not specifically for advice. So yeah, we we talk about non-estate assets and other things that are non-estate assets. It's another misconception, is people might have what we call discretionary family trusts. So someone might have a family trust and they run the business through it and they have control of that trust, yes. But again, those assets are not theirs to deal with. So say if I have the Tut family trust. Fiona: 11:00 They're owned by the trust. Yeah. Julia : 11:02 Those assets are trust assets. Yeah. I might have the benefit of them. I might derive income from that trust. My spouse might get income from that trust. All my children and grandchildren could get money from that trust. But when it comes to me dying, those assets in that trust does not form part of my estate. They they don't over. Fiona: 11:21 Yeah. Julia : 11:22 They're treated separately. And that is another thing that I can understand. People, you know, go through their whole lives, decades where they have this trust and they have control of it. And it it is, it feels like they do have a sense of ownership because they do have control of the trust, so they do feel like they own it. But legally speaking, they don't. Fiona: 11:40 Would they, say if someone passes away and a divident is paid out, would that go to the estate? Julia : 11:48 The dividend, if it's if the dividend is issued to the person who died, yes. The dividend goes over to that estate, but but not the assets that's not the assets. Yeah. So say there's yeah, a business or um investment properties that are deriving income, and those investment property people come in and say, Oh, well, I'd like to, you know, transfer. Sell one of those. Yeah, sell one of those, or I would like to oftentimes it's oh, this family trust actually owns five properties. We kind of built up this property portfolio for our five children, and I'd like to give one of these properties to each of my five children. I'd like to do that in the will, please. And I said, No, you can't do that in the will because the will isn't done by the trust. Yeah, yeah. Look, there's ways around it, but those investment properties that yes, you've built up over time and you've worked really hard to maintain them and get that, you know, those assets going, you can't then gift them in the will. Fiona: 12:46 What about personal items? Like what about digital assets? What about Bitcoin? Bitcoin. Julia : 12:53 Bitcoin's important well, yeah, crypto assets assets are important because I mean they're a new asset, generally speaking. You know, we've had bank accounts for a really long time. Fiona: 13:01 Yeah, even the thought of it seems complex to me. I wouldn't, I wouldn't know where to begin. Julia : 13:07 Yes, and it's gonna become more commonplace as our population ages, because I think a lot of people who own crypto assets are not necessarily coming in to get their will done right now, or they're not coming in to see a dedicated wills and estate specialist firm to do that. So we're gonna see that more as people age with their crypto. It's important with crypto about security because there's all sorts of ways to hold crypto, and I'm not an expert, I don't know a lot about it, but I know that I think they call it a boating accident, is when you lose the like security to your crypto. Fiona: 13:43 Wow. Julia : 13:43 That's bad. I know that that's bad. And so it's all about you know, where have you kept your kind of passcodes or passwords for your wallet? Is it a physical wallet? Is it a digital wallet? All of that information. There's um a practitioner who's based in Tasmania who knows all about this and talks at conferences about crypto and how to do it. She has a guide where you can provide clients like a kind of a checklist or a dossier specifically for crypto and digital assets and a guide for your executors. So I would yeah, recommend them. Yeah, and it's more just you just don't want to not mention crypto, and it's not even that. I'm not suggesting that you have to gift crypto specifically in your will, but your executor needs to know that you've got it, that it exists, that it exists, yeah, and then guidance as to where to find the information as to how much it is, what's it worth, and how to release it to the estate. And I think there's also the element of worldwide crypto, it's not necessarily like if you have a bank account with the Commonwealth Bank of Australia, it's based in Australia, there's no doubt about that. Whereas crypto can be anywhere and it can be a US US asset or Denmark, like who knows? Fiona: 14:58 It could be anywhere, and then you've got rules and restrictions that uh uh apply could be quite different to what they might be. Julia : 15:05 Suddenly you might need to get a grant in USA in order to release this crypto, and it might only actually be worth $10. So there's look, yeah, crypto. Fiona: 15:15 Very complex is another very complex. When should a will be reviewed or updated? Julia : 15:21 So I normally say every three to five years, or when circumstances change, and that is a line that is largely across the board of estate planning lawyers. So circumstances changing could be I've had another child, I've sold a house that I specifically gifted in a will. Julia : 15:36 It could be, you know, someone's died that I in the will. Fiona: 15:40 Or you suddenly develop a particular affiliation with a charity and you want to leave something to them. Julia : 15:46 To them, yeah, yeah, you've survived cancer and you say, actually, no, I want to leave everything to the cancer council, or a relationship breaks down and you suddenly don't want to involve a beneficiary in the will. Also, financially, you could win the lotto and you want to change everything up because wouldn't that be lovely? Yep. So, yeah, they're they're the kind of circumstances. And normally what I tell clients is if this circumstance chain changes, you have another kid, for example, give us a call, and you know, we can just say, Oh, yep, okay, no, you've had another kid, congratulations, that's great. How does this affect your will? How does this affect your documents? Oh, it actually doesn't affect it, it's fine. You know, your your will gives everything to your children and they're not named specifically, so it's fine. No need to update it. It remains the same. It remains the same, and then that's it. You know, it's just a trigger for review. I met with clients this morning where their circumstances had changed financially, their kids were older. That's another big one. They you do your will when the kids are all under 18 and it's a totally different landscape, and then they're all suddenly in their mid-20s and their 30s, and they say, Oh, wait a minute, we should update our will. That's a big one. Fiona: 16:53 And I guess when they're uh infants or children, there's instructions in there about who gets to have your kids if you're not going to be able to parents are no longer with us, yeah. Julia : 17:05 So that's that's kind of the normal trigger, and sometimes it might mean, oh yep, no, let's update those documents. Um, today it was just we'll do a codicil, and I'll explain a codicil. So a will is the document. A codicil is kind of like an addendum to the will. So it might be that you just change one clause in the will, and then the will and the codicil are read together as one document. So it, you know, it might say clause two, I appoint these people as my executors, and then we do the codicil and we're actually naming totally different people as the executors. So we just replace clause two. So when it comes to passing away, that person, we look at this will and then we but we know that there's a codicil that goes with it. And so it's like, oh, actually that clause doesn't apply, it's this one. Fiona: 17:52 And does that need to be does does a codicil need to be signed and witnessed? Julia : 17:58 Has all the same requirements of signing a will, so I do not recommend that you make little hand amendments to your will at home. Fiona: 18:05 No post-it notes, no, no extra little bits of scribble on the side? Julia : 18:10 No. If you're doing little scribbles on the side, that's a trigger for review and to call the lawyer who did the will. Yeah. That can cause issues because, yeah, without going into the nitty-gritty of all the legislation, but it can, you know, were those changes intended by the deceased to be the last changes to the will and did they intend that to be permanent, or was it just their kind of musings about oh question mark, should I appoint this person? Fiona: 18:35 Yeah. Julia : 18:36 So don't do that. Good to think about. Good to think about. Um, we yeah, that's look, pull your documents out and look at them and question mark them, but don't just then leave those changes there. If you want to make changes, call the lawyer because they can advise you further. You again, you might not know how that change will impact your will. Fiona: 18:57 And there's different ways to describe how you leave things in your will. There's there's residual estates and percentages and specific gifts. Can you talk to me about that? Julia : 19:08 Yeah, so largely speaking, if you're gonna do from a big picture, the will consists of an executor role, any specific gifts, and residue. The other stuff might be powers for your executor, the guardianship clause, maybe a direction about super. But I guess if you were to kind of boil it down, we need to appoint an executor, we need to direct any specific gifts, if any, and then we need to just gift to your estate anything that you own, and that's what we call the residue. So, specific gift could be jewelry. Jewelry is a kind of a good example. So I would like to give my watch and my engagement ring and my wedding ring to Fiona. And that's a specific gift. Thank you. Yeah, you're welcome. But that also, and this is the problem with specific gifts. If during my lifetime though, I've gifted my engagement ring, my wedding band, and my watch to someone else, upon death, if I don't own those, then that gift to Fiona fails. That gift falls away. So that is the same with property. Often people want to say, Oh, okay, well, this is kind of what happens with the DIY will kit. People think, oh well, I've got this bank account, this house, and then I've got that other term deposit, and I'm gonna gift all of them to these people. No. Because if you don't have that term deposit when you die, which is quite likely, that gift fails, and then it's not really recoverable. It's not like someone can kind of call it back in order to make that gift effective. If you don't own that house at the time of your death, then it the gift fails. So that's why we have the residue clause, which captures anything in your name. And with residue. After the specific gifts, if you've got them. So if I gifted my jewellery to you and then the rest went to my husband, and I would that would be the residue. Fiona: 20:52 And the residue, am I right in thinking the residue is most often dispersed in percentages? Julia : 21:00 Yeah, it it it off that's what we like to do because again, you don't know the residue might be a million dollars, it's not for me personally, but the residue might be a million dollars now, and so you kind of have a general idea that okay, if I'm splitting it 50-50, then these two beneficiaries are gonna get 500 grand each. Um, but when I die, I might not have a million. Yeah, I might have a lot less. Yeah. Or I might have a lot more. And so if you have that 50-50, it just means that no matter what you own, it's really clean. Yeah, it's either not only the the balance of what those assets are, but also how those assets, sorry, what those assets are. So I might have one house worth a million dollars that I'm gonna split 50 50 right now. But yeah, by the time I die, I might actually only have $500,000 in a aged care refundable accommodation deposit, and then $500,000 in a term deposit. And so that will clause will still apply. It's just everything. work with your lawyer they'll help you with the the correct language to protect yes that situation yes yeah sometimes lawyers still use parts like we use fractions as well might be say I divide my estate in two parts one part to X one part to Y there's also you also have to think about what happens if X dies before me. What happens to her 50%? Does it go down to her children? Does the legislation pick that up in the event that I don't include that clause? Actually I don't want it to go to her children she doesn't have any I would like it to go to the cat's home. You have to think about in the event that any of these beneficiaries die before you where's it going to go? Fiona: 22:43 And I've heard of circumstances where elderly parents are concerned about leaving funds to a son or daughter because they're worried about that person's spouse. They're worried that that person's spouse might be difficult and they want to protect some situation that might happen down the track. Is there a way to to do that? Julia : 23:04 That's a can of worms yes there are mechanisms to put protections in in terms of yeah basically like the potential of your son or daughter having a family law separation. What I will say though is that the family and I'm not a family lawyer but the family law courts and the family law legislation and case law precedent it has wide reaching powers. The family law court this is my line they have long and sticky arms and they will get a hold of something if because when you think about it might have been I don't know how many decades and again I'm not a family lawyer nor am I an expert in the history of family law but you know people would have a lot of and I'm gonna say men you know back in the I don't know 50s sixties seventies whenever couples were separating and the the man would come to court and say I actually only have a dollar to my name I don't have anything but they actually had it in trusts they had family trusts they had testamentary trusts and actually all the assets were in a trust and the wife is saying well I know that you're rich I know that there's assets there but you're saying that in your personal name you only have a dollar well that's a lie. So the court developed case law mechanisms mechanisms to be able to get a hold of those assets because that's just not necessarily it's not okay it's not necessarily what we call a sham trust but the court should be able to get a hold of those assets if they're and bring them into the marital pool. So that's the extreme end of things obviously that's not necessarily the case now and it's a lot less commonplace but I'm just saying that the court the family court develops to reflect society and they move quite quickly. Going back to pets they kind of changed how they treat pets in family law separations and property separations kind of put a bit more meat around it. Yeah yeah to recognize the fact that people treat pets as their family they're not they're not they're not property they're family members and so a lot more consideration goes into that besides what they paid for the you know poodle as a puppy. So yeah the family law court can kind of there there's a limit to the protections you can put in things like setting up a testamentary trust in your will which is a whole other kind of conversation that's the main thing that we would recommend if if people have a son or a daughter and they're worried about the partner, they don't like the partner or they really love the partner but they want to make sure that the inheritance that they're giving to that son or daughter goes down the family line. Yeah. So yeah normally what we would recommend is doing a testamentary trust will where um that son or daughter does not receive their million dollar inheritance in their personal name in a bank account they would the trust would be established and it's a trust set up in a will that's what the testamentary phrase is testamentary is essentially a something associated with death so things like testamentary expenses that's something that's thrown around a lot. A classic testamentary expense is a funeral because it's related to death it's like specifically to death. Fiona: 26:12 Ah I see so the uh the costs of funeral come out of the assets of the estate. Julia : 26:17 And so a testamentary trust is a trust set up in a will pursuant to death. Fiona: 26:24 I imagine kind of going off topic here but I imagine that a testamentary trust being set up is somewhat expensive and has incurs annual fees and all those sorts of things as well it would I imagine only be used in certain circumstances where there's quite a lot of wealth to be handed down. Julia : 26:42 Again this is general information but yeah you're right setting it up when when you see an estate planning lawyer the option to do a standard will versus testamentary trust will testamentary trust will is more expensive because you're setting up a trust essentially you're setting up a family trust a discretionary family trust but in a will and only comes into play once that person is deceased. And once that will you know is executed. Because I might do a testamentary trust will now today that document just sits sits kind of stagnant in a safe but I might in 10 years time decide actually no I'm not going to do a testamentary trust will I'm gonna do a brand new one. So that old will that's now been revoked that's out it's redundant. It's redundant yeah so the trust is only established if that person dies and that will is the last will of the deceased. Yeah so the annual fees associated only come into effect when the trust is established. Yeah and then the trust is doing tax returns and yeah yeah annual fees maybe getting financial advice like the the trust would be investing assets and such. So yeah the fees associated are at the start when you're doing the will because the will is more complicated and there's more legal advice and more legal drafting associated with it. So it's more expensive at that outset but obviously if you've got millions and millions of assets to protect potentially billions then it's worth it. It's worth the extra cost. It's worth every cent. Yes so there's there's cost associated with that there's annual costs that would come with it if it was established. And normally we kind of say and look this this will just change as time goes on and how as our economy changes but normally I say it's something to consider if each beneficiary is going to get at least $5000 each. So at least each trust would get $5000 because then you think the ongoing costs of the trust would probably be worth it. So does a testamentary trust only apply to one individual or does it apply to siblings for example like one trust two siblings or oh so it can most of the time though you're if if you have three children you're setting up in your will three separate trusts for the three children. Yeah that you don't have to do that but that is the standard largely what's yeah that's largely what's done. Yeah sometimes um wills have clauses in there that say if that beneficiary doesn't want the trust they can notify the executor and say excuse me I'm getting about only you know $500,000 in this trust but my mortgage is $5000 and I'm just going to pay it off the mortgage. Yeah. So I don't need the trust so they can notify the executor. Julia : 29:24 Not every will clause will has that. Fiona: 29:26 Is it an executor's decision whether they go to one. Julia : 29:30 It depends on it depends on how that clause is drafted. I've seen it a number of ways yeah and look oftentimes that say there's three children and all three of them are executors and so one says I'm gonna just use this money for my mortgage they give notice to the executor and then the executor is them and their siblings and they all it depends. So it depends on how it's drafted. Fiona: 29:52 We might do a another whole episode on estate management but just very quickly uh with executors how many should you have so what's ideal? Julia : 30:02 Yeah yeah how long's a piece of string um this it's so hard to determine and it's unfortunately it is a it depends answer. Yeah because look I wouldn't recommend ten I wouldn't recommend more than four I think it was a while ago now but I had a matter in a New South Wales estate admin matter where there were four exec or maybe it was five executors and the court said no get one of them to renounce you're not doing so you and I think their guidance was four but as an executor you can walk away and see you can walk away yes depends on how the will's drafted as to the impact of you walking away but yes you can renounce your role as executor. But if you're the sole executor and you renounce then that can have implications who's going to get the grant then yeah yeah but yeah so the executors there's two kind of lines of thought some lawyers will say just appoint one because it can't if if you appoint the right person the right one person they just have full control and can it and get things done and they're not held back by looking the other senses. Yeah they can just get it done. So that's one kind of thought process and for a lot of people that I've seen that work quite well you know there might be four kids and they've just appointed the one and normally it's the most type A person. Yeah. That's normally what we recommend. You need someone organized you need someone motivated you know if it's if it's a family member. So there's that appointing two can be hard because it could potentially you know reach a standstill because neither of them do anything if they both disagree. Whereas if you have three again appointing executors it's a joint role there's no option to do joint and several it's three of them. If you appoint all three it has to be all three and they do have to all agree but it could be that two kind of bully the other into agreement. Yeah if there's any disagreement. Wow so it it really depends it depends on the family it depends if you have an independent person as well or if it's just family and friends. Yeah there's just it's something to really worry about yes. Fiona: 32:10 Many ways to approach it. Julia : 32:12 In many ways to skin a cat. Fiona: 32:13 And tell me, so we've spoken about complex wills and people leaving lots of assets. It's it would be good to understand what it would cost me to prepare a will but understanding that the line from small to large is is massive right so if I'm just a regular ordinary person without a house and some money in the bank and a couple of kids what will it will it cost me to prepare a will? Julia : 32:41 A few thousand I'll just say a few thousand it could be as little as you know some um suburban lawyers who you know you might go to to buy your house and maybe appear in criminal court for you if you've got a a driving offence and then they do a bit of family law as well. There are general a generalist firm often they will do a will for you and they can do it quite cheaply. No offence to those suburban lawyers they mostly know what they're doing but sometimes there can be some complexities in an estate or in a client that they may not pick up on potentially so it's good to see a specialist but I look to be honest a it depends geographically as well you know if you're going to the Melbourne CBD to get your will done even if it is a generalist law firm the cost might be higher than if you're in regional Victoria. Yeah you know it does really depend on geographically where you are so geography circumstances. It could be $500 it could be up to $3,000 normally most practitioners will do it fixed fee so you're not necessarily just paying for the hourly rate of the lawyer to do it. So you could get you know a really specialist firm and a specialist lawyer doing the will for a set price. So you know exactly how much you're going to be paying it when you go in and I would also say a lot of practitioners in this area will do kind of package deals with a will and a power of attorney and a guardian all in one bundle. Fiona: 34:12 Yeah. Julia : 34:12 And normally it's for a single and for a couple so sometimes I tell people the cost like a couple I tell them the cost for that and they think that it's per person but it's not it's for both of them and most practitioners do that. Fiona: 34:27 What should people know if they're thinking about leaving a gift in their will to charity? Julia : 34:34 It's important charities charities are great beneficiaries lots of things to think about. It's quite easy when you if you want to give something to say the RSPCA or Salvos, Chris O'Brien Lifehouse, St. Vincent's they're massive charities and they're not going to really go anywhere anytime soon. They also like guide dogs there's there's guide dogs New South Wales Victor you know it's state based as well so you have to be really clear you have to be really clear. If you're thinking about gifting money to charity I would really recommend that you go see a lawyer because look a lot of the time on the charity's websites they have you know because they obviously want the money so they want to give you guidance to make sure that you can give something in your will so that they can accept it. But we'll talk to you about you know well what's going to happen if that charity doesn't exist the specific purpose of that gift and if you say you're giving it to the guide dogs but you actually want it to go towards I don't know the specific training feeding the dogs. Feeding the dogs yeah the food and so we can talk about that. There was an episode of Fisk. Yeah it's a great TV show. If anyone wants to just know what a Wheels and estates lawyer's life is like that's what it is. There was an episode of Fisk where there was a will where she um the deceased had died and she'd given the money to a cat's home but the cat's home didn't exist anymore and there was this whole issue about well what was the origin story of this cat's home you know was it the cat's home that then turned into the Fiona Healy cat's home and then it actually went to and so yeah I I don't know if this actually happened in the show but in that case you'd end up going to court to try and figure out who's which charity is the one that it's called a Cypress scheme. Fiona: 36:13 So that's if the the charity with still exists in some form. Julia : 36:19 Yeah like or just doesn't exist at all. But if it doesn't exist do you have to go to court or can an executive it depends on how they're you know say if you did a DIY will kit and you just gifted it to the South Melbourne cat's home full stop nothing else and that cat's home doesn't exist at all very ambiguous yeah yeah it's just not clear enough there's no ABN there's no ACN there's no there's there's always kind of specific wording to allow the charity to actually accept the gift as well but if you see a lawyer maybe they can advise you about the specific wording that will capture in the event that that South Melbourne cat's home doesn't exist then do you want it to go to a totally different charity? Do you want it to go to the dog's home instead or do you want to make sure that just that gift goes to a charity with the same purpose so it might be the Port Melbourne cat's home. Fiona: 37:08 I guess what I'm hearing as a real clear takeaway from this is that uh whoever or whatever you choose to leave gifts to you should add a backup in there just in case they're no longer mixes if if you do that DIY wheel kit where you gifted all of your estate to Fiona and then Fiona doesn't survive me then you've got you've got intestacy and then suddenly yes you wanted it to go to Fiona but Fiona's not around anymore. Julia : 37:39 You haven't done a gift over so now we have to look at the intestacy rules and actually it goes to your parents or your cousins and that's not what you wanted. Ah I see so you have to think if that clause or that if if that gift fails where's it going to go and if you haven't got a proper backup it's gonna be intestacy. So it might be that I've given it to say Fiona and to Sam Fiona's predeceased what happens to her half it doesn't necessarily go to Sam. Depends how it's drafted so if it's not drafted properly with these contingencies yes then that 50% is on intestacy. The other part for Sam it's fine Sam's alive Sam receives his 50% but the Fiona 50% where's it gonna go? Yeah it goes on the rules of intestasy yeah very complex very complex see and this is I guess this is the stuff that people you don't know what you don't know and so that's why you're here that's why we're here yeah it's a very um look people it's they're guaranteed death and taxes wow amazing when is a will final when is it um complete and legal document and when is it not? That is actually Oh but it is actually you've opened a can of words no largely speaking the formal requirements for the will is that it has to be signed and it has to be signed in front of two witnesses and those two witnesses have to have witnessed you signing it as well. That's when it's done it might if if you uh just had it witnessed by one person normally you can still get that will pushed through or if you've missed a page it doesn't mean that the whole will just goes out the door. Fiona: 39:20 So those online wills uh there's there's a number of different organisations that provide those from my understanding if you prepare a will online you're supposed to print it off and sign it and have it witnessed what what happens if that doesn't if that hasn't happened? Julia : 39:38 It's does it then it doesn't meet the formal requirements of the will. Fiona: 39:43 Yeah. Julia : 39:43 And there has been there's been at least one case a little while ago now it was during COVID about that whether it and I think and I can look it up but I I think it was deemed that it wasn't a valid will and so that will was not signed and it was not admitted to probate because it's just a list of wishes really yeah and I think the executor potentially wanted to push it through pursuant to the informal requirements like an informal will. Yeah which um has yeah different requirements but they it wasn't the court the court didn't yeah kind of take that argument. But yeah the online the online wills are it's great that they're accessible but it is very important that you actually talk to the lawyer on the other side in in those companies because there's it's run by lawyers get the advice and look there's all sorts of caveats by those businesses but yes you have to print it and you have to sign it in front of the witnesses don't sign it and then go to your two witnesses and say hey can you sign this? Julia : 40:44 Yeah well then you're not witnessing the signature so yeah you have to print it off it is old school wills are old school one more question about uh once a will signed if I've been preparing my will with my lawyer do they get a a separate copy like a are two copies printed and signed in the same room at the same time there's one original one original and normally the solicitor will keep that original in their safe in their safe custody yeah there's a reason for that if the original is kept with you you take it home you put it in your safe that's great but you take the original I'm not talking about copies the original that you've physically signed if subsequently that document is lost oh god you know your executor can't find it they can find a copy but they can't find the original and it's deemed that the original was last with you the testator the deceased and they can't find it there's a presumption that you've actually destroyed it. Fiona: 41:42 Amazing I didn't know that. Julia : 41:44 And then we could be in all sorts of trouble. Yeah however that presumption does not apply if it's with the solicitor now this is I'm pretty sure this is a Victoria and New South Wales I'm not sure on the other states it probably is yeah it's a presumption of revocation by just destroying the document. So the court's gonna say well if you can't find it it was last with the deceased the presumption is that she tore it up burnt it doesn't exist doesn't exist anymore because she didn't want it to exist. If it was last with the solicitor and they've just lost it which does happen unfortunately there's all sorts of processes for safe custody but in the event that that does happen it's a lot easier for the court to grant a grant a probate on a copy. Yeah because there's no like why would the solicitor destroy it? There's no presumption that it's been destroyed. The presumption is that they lost it so yes you sign one document you can make copies copies can be distributed to whoever you want but the original should stay with the lawyer. Fiona: 42:48 Are there any common mistakes that happen with wills? Julia : 42:52 The g uh things that we've kind of already spoken about you know like the gift over not thinking about what happens if this person dies before you and a lot of the time people don't want to think about that because they're gifting their estate to their children and they don't want to think about that awful scenario where their child dies and maybe they don't even have grandchildren or they've all gone in a car crash. Like awful scenario but unfortunately you do have to think about it. Other mistakes people appoint the wrong people to be the executors but it's often too you know they do it in good faith and they're appointing the person not out of and they think maybe at the time that they appointed them they were a good fit but ever since they haven't and they never updated it. Yeah and specific gifts I mean the the biggest mistake is that people do it themselves and then there's inevitably an issue but if you're seeing and so the biggest like way to avoid that is to see a lawyer. Fiona: 43:43 Yeah. Julia : 43:43 And yeah specific gifts people gift you know a house to their child and then that's gone that house is sold and there's no you know that was say the only gift to that kid and then the kid just gets nothing. Fiona: 43:55 Wow. Julia : 43:56 I guess it's just a a common misconception that yeah people have to well have This bank account, and I'll give that to that person, and I'll give the house to this person. I've got that investment property, that'll go to we like to avoid specific gifts for that reason. Fiona: 44:09 And any particular takeaways for our listeners without providing advice, but just something to think about if you are preparing to put your wishes in writing in a will without providing explicit advice, of course. Julia : 44:23 Yeah, see a lawyer, and then once you get to the lawyer, don't be surprised by the questions that they ask. Because we do kind of get in your business. Yeah. But we have to in order to give you proper advice. We can only give you advice on what you tell us. And so we do actually want to know how much that house is worth. We do want to know how much your mortgage is, but all in the space of giving you advice. And just have a think about who your executor's going to be, because it's a really important role. Think about the type A personalities in in your life. Think about how if you have several children and you're thinking about appointing them, thinking about who you're appointing, how that might affect the others. Affect the others. And also don't be afraid to talk about it. Tell your kids, tell your friends and your loved ones that you're going to go see a lawyer about your will. It doesn't need to be a really difficult conversation. It can be quite open. It gives a lot of the time for people like adult children, it gives them a lot of peace of mind that, oh god, at least mum's gone to see a lawyer. And I know that I need to contact Julia at DeGroots. I'll call them when you know the inevitable happens. Because we we do all die. It is a fact of life. So yeah, having that conversation is just really important and it can turn lighthearted really quickly. Yeah. And that's a good thing. Because we are all gonna die. Talk about your prepared. Best be prepared. Do more paperwork now. Talk about your funeral, have a laugh about it, tell them what you want to do, if you want to be cremated or not. If you're an adult child, don't force yourself on your parents to show them, you know, get them to show you their wills or anything. That's their information and that's their business. But on the other side of that, if you're a parent and you have adult children, be transparent and try and to the extent that you're comfortable and give them information about where you bank. Sometimes people are just clueless and they just don't know, and we have to write to all the banks to find out where they held their money. So even if you don't want to tell them exactly, you know, that your balances or account numbers, I get that. That's important. But even just telling them where to look, go into that, you know, that filing cabinet that's been in the study for 20 odd years, go there. Yeah. That's where it all is. Just at the very least. So yeah, just go into it with an open mind. It's not as scary as you'd think. Fiona: 46:43 Thank you so much, Julia, for your time today. We'll leave a link in the show notes to DeGroots in case somebody that's listening might want to get in touch. But thank you so much. We've really appreciated your time. And you're more than welcome. Thank you. Thanks. Rest Easy Knowing is recorded at Emerald Hill Heritage Centre on the traditional lands of the Boonwarung people of the Kulin Nation. I pay respects to elders past and present and to any First Nations people listening. And music is by Sapiros.

Resources mentioned

• Voluntary assisted dying Victorian statewide care navigator service