Making your will

Yes! Obviously it's not going to be your problem if you die without one, but unless you want to make things messy and complicated for your family after you're gone, it's a good idea to make a will.

If you are over 18, you need a will, even if you don't own any property. You still need to appoint an executor to deal with everything after you are gone - disconnecting your mobile phone, closing your bank account, arranging your funeral, even deciding who will take care of your pets are all jobs for your executor.

Contrary to popular belief, the government will not take all of your money. However, the government, by way of a piece of legislation called the Administration and Probate Act, will decide who gets your estate. This is called dying "intestate" - read this for more information about intestacy.

You won't get any say over who will be your executor.

The Courts may get to decide who will take care of your children.

You won't get to decide who will look after your pets, and they will be treated as property along with everything else you own.

You won't get to leave those random or charitable gifts you've always thought about making, whether it's $1,000 to the RSPCA or divvying up your scented candles between your sisters (yes, I've seen it happen!).

Finally, and probably the most significant for those left behind, the administration of your estate could end up being far more complicated, expensive and lengthy than it needs to be.

Did you know that when you get married, any will you have made before your marriage is automatically revoked (unless the will was made in contemplation of that marriage)? See above for what happens if you die without a will.

If you have a valid will in place and you divorce your spouse, the will remains valid overall, but certain clauses may be made invalid by the divorce. For example, if you have appointed your spouse as your executor and leave everything to your spouse, the will is instead interpreted as though your spouse has predeceased you, meaning your backup executor will be instituted and your backup beneficiaries will take your estate.

The relationship change that you really need to be aware of is separation, as it has no effect on your will. If you have a valid will leaving everything to your spouse, and you then separate but don't divorce, the will remains valid and your spouse will still receive their share of your estate, even if you haven't spoken to them in 30 years. For this reason, changing your will should be your first step when separating from your spouse.

A will prepared by a qualified, experienced lawyer starts at $100.00. Go here for more information about pricing.

It's important that your will is kept in a safe place where it cannot be lost, damaged, stolen or tampered with. I recommend storing your original will with State Trustees in Melbourne - this is free of charge for all Victorian residents. Another option is storage with the Supreme Court of Victoria in Melbourne, although there is a fee for this service.

You should also keep your own digital copy and a hard copy, and ensure your executor(s) know where to find the original. I also retain a digital copy on your behalf, should you ever lose yours.

You may keep your original will at home if you wish, but you need to ensure that it will survive even if you do not, for example in a house fire.

Short answer: you can't. What you can do is make it less likely that they'll succeed, but unfortunately all it usually takes to obtain money from an estate is to make a claim. Court costs are so high that executors often pay whinging would-be beneficiaries off just to avoid wasting the estate's assets on legal fees. As the estate can be ordered to pay the claimant's costs, it is sometimes seen as a "free shot" for the claimant.

What you can do is make it less likely that such a claim will be successful. To do this, you need to understand that the claimant will try to convince the court of two things:

1. That you (as the deceased) "had a moral duty to provide" for the claimant's maintenance and support; and

2. You did not make adequate provision in your will.

It might seem as though this means you need to make an equal distribution of your estate between your children, but that is not always the case. If one child is particularly well off and another is unemployed, often it is appropriate to make less provision for the wealthier child. Similarly, a child with a disability may have more need than a non-disabled child, and subsequently an unequal distribution may be considered to provide for the first child's care.

The court will take a number of factors into account, including any reasons you've given in your will for why you might not have made provision for someone, so if there is someone you're excluding and you're concerned about it, it's very important to discuss it with your lawyer so they can make every attempt, in drafting your will, to avoid a challenge.

Believe it or not, the following list has actually been narrowed in recent years.

• Spouse / domestic partner (including former, in some circumstances)

• Natural child / stepchild / adopted child (or their spouse, in some circumstances)

• Person who believed they were a child of the deceased

• Registered caring partner

• Grandchild

• A member of the deceased's household

This is a simplification of the list, there are some intricacies in some of the categories. For more information see Section 90 of the Administration & Probate Act 1958.

Making a will is like baking a cake - you can keep it simple, or you can add a lot of different ingredients.

The will "cake" needs the following basics:

• An executor - you can have one or more, but no more than four. You can appoint a beneficiary / a child / your lawyer as your executor. You can also appoint someone completely separate who has no other involvement with your estate other than to administer it. Choose someone who has their head screwed on fairly well as they, usually with the assistance of a lawyer, will be collecting and distributing all of your assets. See here for more information about what your executor's role will be.

• Distribution of what we usually call the "rest and residue" of your estate, in other words, what's left over if you haven't made any specific gifts. The residue is usually divided by fractions (e.g. a quarter each to four different people) or percentages (e.g. 20% each to five different people). Doing it this way ensures there's nothing left over at the end that hasn't been gifted to someone.

Once you've got these two figured out, we can start on your will. Click here to provide me with some instructions, or otherwise give me a call on 0422 699 504.

The "extras" you can add to a will are too numerous to list, but some of the more common ones are:

• Backup executor(s) and beneficiaries - because we never know what is around the corner.

• Specific gifts - anything you can identify / name can be left to a particular person, group or entity. For example, jewellery, a car, a piece of real estate, a set sum of money or the contents of a particular account.

• Guardian(s) for your under-18 children.

• Funeral wishes - not binding on your executor and often not seen until after your funeral has been conducted, but nevertheless it can be a good way to ensure your wishes are recorded in writing.

• The age people have to be before they can inherit - if you don't specify, it's 18 years. Some people like to make it higher, because we were all 18 once and some of us definitely shouldn't have had our hands on any kind of money.

• Life interests, where you leave someone something for them to enjoy during their lifetime, but when they die it passes to someone else.

• Nominate the lawyer you want to handle your estate, since they're the most likely to know about your estate and know the best way to assist your executor to handle the administration.

• Give your executor various powers in the administration of your estate, for example to sell or rent out real estate, sell shares, carry on any business you are operating, pay young beneficiaries part of their inheritance, etc.

• Exclude people from your will and give reasons why.

• Donate your body to medicine or science.

Your digital assets are things like your social media and email accounts, cloud storage, online photo albums, blogs, etc. You can leave instructions in your will about what you would like to happen to these assets, for example closing the accounts down, maintaining them (Facebook pages can be turned into memorials), or retrieving and retaining or distributing the data. If you intend to do this, you will need to provide your chosen beneficiary with the means of accessing these assets, either by providing the password (not helpful as you are likely to change it before you die), or making use of providers' built in "dead man switch" (not the real name but I'm hoping it'll catch on), where they can notify your chosen representatives if you don't log into your account for a set period of time.

Not being a tech expert, I couldn't begin to tell you how to best manage all of your digital assets, but a good starting point is Google, as many people seem to have a Google account. You can go here to activate your dead man switch.

Your next best option is a clause in your will specifying who should take control of your accounts, what they should do with them, and where they can find your passwords, if applicable. This will give your chosen representative the authority and tools they need to carry out your wishes.

If you don't want anyone touching your accounts, consider whether they should be deleted. Facebook, Google, and presumably other tech companies, have mechanisms to request that deceased accounts be deleted. If your accounts are not going to be monitored after your death, deletion is a good option to prevent hacking and identity theft. You can leave instructions in your will to direct your executor or other chosen beneficiary of the accounts to delete all data and the account itself after your death.

If you have specific digital assets you wish to protect, please discuss these further at the time of making your will.