Frequently Asked Questions

1. What is a Will?
A Will is a legal document in which you state how you want your assets to be distributed after your death. A Will also permits you to choose an Executor who will be responsible for making sure your wishes are met.
Everyone 18 years or older should make a Will.
A Will is a device that lets you tell the world whom you want to get your assets. Die without one, and the state decides who gets what, without regard to your wishes. Making a Will is especially important for people with children under the age of 18, because Wills are the best way to transfer guardianship of minors.
If you don't make a Will before you die, the state will determine what happens to your property. Generally, it will go to your spouse and children, but if no relatives can be found, it will go to the state.
No. Regardless of how much or how little money you have, a Will ensures that whatever personal belongings and assets you do have will go to family or beneficiaries you designate. Without a Will, the court will decide what happens to your belongings once you have passed away.
Your Executor is responsible for the entire administration of your Estate and for carrying out your wishes according to your Will.
The appointment of your Executor is entirely up to you, but must be someone 18 years of age or over.
Your Executor will attend to your funeral arrangements, locating your Will, applying to the Supreme Court for a grant of Probate of your last Will, locate your beneficiaries, collect your assets, making sure all your claims and debts are received, assessed and paid if substantiated. Your Executor will also be required to distribute your assets according to your Will, including lodging outstanding tax returns and defending any litigation initiated against your Estate.
A Guardian is someone who looks after and is legally responsible for someone who is unable to manage their own affairs, for example an incompetent or disabled person or a minor child whose parents have died.
You may appoint any person that is 18 years and over to be your child's legal guardian.
When the person (being a minor or someone with a disability) does not have anyone who can help them make an important decision. Also, when family and friends disagree about what is in the best interests of the person or if there are no appropriate arrangements already in place to assist or support the person to make a decision. It may also be that there are legal requirements, such as the need for someone to provide valid consent to behaviour intervention with an element of restraint or when the person with a disability is at risk of abuse, neglect or exploitation as a result of their lifestyle or because of the actions of other people involved in their life.
The word "Testamentary" means that the trust has been brought into existence by a Will. This type of trust does not come into existence until the death of the testator. Parents with minors will usually leave their Estate to their children under a Testamentary Trust.
A beneficiary is a person (or persons) you select in your Will to receive a benefit in the event of your death.
A Trustee is a person put in charge of overseeing the day to day management of property owned by the Trust. A Trustee can be an individual, an institution, or a combination of both, and manages the assets you left to your (usually to minor beneficiaries) that is held in trust.
Usually the same person is appointed as Trustee and as Executor. A Trustee can be a family member or a friend or a professional person such as a solicitor or an accountant. A professional Trustee is allowed to charge for their work and their charges will be deducted from the proceeds of your estate.
To appoint a trustee for your testamentary trust you should name your choice of trustee in your Will. Normally when a testamentary trust is created in a Will the Trustee and Executor are the same person, although this doesn't have to be the case.
No. There is no formal requirement for a Solicitor to sign or witness your Will.
First of all, you need to read through your Will very carefully to be sure that every page is there and that all the details are correct. Once you have read your Will, you can sign it in the presence of two witnesses.
You must sign the Will using your normal signature in the presence of two witnesses at the bottom of each of the pages of the Will and on the last page, and then your witnesses must sign the Will in your presence. You and your witnesses should all use the same pen. The pen may be either biro or ink. Do not use any type of pen which can be erased. Also, the Will needs to be dated in the space provided.
You must have two witnesses and both should be over the age of 18 years. A witness must not be a person who receives anything under your Will (also called a beneficiary).
You must have your Will witnessed at the same time as when you sign it. The Will can be signed and witnessed at any time while you are still alive and not under any sort of disability.
The original Will should be kept safely with your other valuable documents. Do not attach anything to an original Will, not even paperclips. Tell the Executor where the original Will is kept, and when it was deposited there. You may wish to make a list of your assets and liabilities to assist your Executor. If you do, keep the list with the original Will (but do not attach it to the Will).
No, there is no requirement for your Will to be registered.
An Enduring Power of Attorney is a legal document that gives someone else the power to make financial decisions on your behalf. In order to make a valid Enduring Power of Attorney you must be 18 years or over and have sufficient capacity to understand the nature and effect of the appointment.
Accidents, sudden illness or disability, or absence from the jurisdiction (due to work or holiday) can occur at any time and may disrupt your lifestyle and affect your legal capacity. At these times it is likely that you will need someone to be able to manage your legal and financial affairs on your behalf.
You can choose anyone 18 years or older who you feel you can trust. This may be your spouse or partner, another family member, trusted friend, accountant or lawyer. It is important to choose your Attorney carefully as they will be responsible for making legal and financial decisions on your behalf. Your Attorney should have the business and financial skills to manage your affairs properly and be capable of keeping accurate records of all dealings and transactions they undertake on your behalf. Your Attorney must agree to take on the role. Therefore, make sure you discuss your intentions to appoint them as your Attorney and what it is likely to involve before making the appointment.
An Enduring Power of Attorney may be written in two ways, to either come into effect immediately, or to come into effect only when you are mentally incapable to do so due to injury or illness.
A general Power of Attorney ceases to have effect once you lose your ability to make financial and legal decisions. An Enduring Power of Attorney continues to be in effect after you lose your ability to make these decisions.
The important thing to understand is that you can only give an Enduring Power of Attorney when you have legal capacity at the time you give the power, in other words, when you are capable of understanding the nature of what you are signing.
Any person who has reached 18 years of age and who has full legal capacity may make an Advance Health Directive containing decisions in respect of the person's future medical treatment.
An example of an instruction is if you are being sustained by mechanical means and in the opinion of 2 medical experts you have no reasonable prospect of any quality of life in the future, then you direct (by way of the Advance Health Directive) that life sustaining methods be withheld.
An Advance Health Directive may be revoked (cancelled) by the maker at any time whilst the maker has full legal capacity.
An Enduring Power of Guardianship is a legal document that authorises a person of your choice, to make important personal decisions on your behalf should you ever lose the ability to make these decisions yourself. Your guardian could be authorised to make decisions about things such as where you live, what education and training you receive and who you associate with. An enduring guardian can not be authorised to make property or financial decisions on your behalf.

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Fort Knox Legal
Ground Floor, Centrepoint Tower
123B Colin Street
West Perth WA
AUSTRALIA

T: (08) 9200 1833
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Mail: PO Box 390, West Perth WA 6872
Email: info@fkls.com.au

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