Benjamin Franklin once said, “In this world, nothing can be said to be certain, except death and taxes“. Considering this, it’s important to take care of what’s certain in a timely and efficient manner. In this case, we’re talking about estate planning.
Everybody should have their will prepared at one point or another, and there are a few ways to go about this. You can get a simple will or a complex will. But what’s the difference between simple and complex wills, and which is right for you?
Keep reading to learn everything you need to about simple wills, and complex wills.
What Is a Simple Will?
A simple will is, well, a will written out in the simplest possible way. They’re much shorter than complex wills and usually leave the rest and residue of a person’s estate to only one or a few people. For example, a simple will may leave a single spouse the whole estate, or split an even sum between the testator’s children.
What Information Is Included in a Simple Will?
A simple will includes the bare minimum needed to establish and split the estate. Here’s some of the information you might put on your simple will:
- The name of the executor;
- Who you want to leave the estate to, and how much you want to leave to each person/establishment;
- Who gets the estate if these beneficiaries are unable to accept;
- Who will be the guardian of your minor children if the other parent has also passed;
- Charitable donations/gifts from your estate; and
- Who will look after your pet(s) when you pass
As you can see, a simple will can cover quite a lot of territory while remaining simple.
Who Needs a Simple Will?
Simple wills are much less used than complex wills. However, if you’ve got few assets and a small family, a simple will may be right for you.
Many people use simple wills if they’re in their first marriage with kids, and that marriage is happy. In this case, the testator usually wants to give their estate to their spouse and children exclusively. A simple will lets the testator do this clearly and concisely without any room for misunderstanding.
However, if you have a lot of assets and people to award the estate, then a simple will won’t cut it. That’s where complex wills come into play.
What Is a Complex Will?
Complex wills are, as the name suggests, more complex than simple wills. They may include things like Special Disability Trusts and Testamentary Trusts. A complex will provides the testator with much more in-depth ways to distribute their estate.
With a complex will, you can set up certain conditions by which the estate is split. You’re given a lot more freedom to spread out your estate in specific ways. You don’t just need to award lump sums to your family, you can give whatever you want to whoever you want.
What Information Is Included in a Complex Will?
Complex wills often require a lot more information and include a lot more directions than simple wills. Complex wills include all of the information from a simple will, but expanded. Here are some of the things you can expect to put on your complex will:
- How is the will split between children from all marriages?
- If any of these children have disabilities, how will they be cared for?
- Who gets control of any businesses, corporations?
- Who gets any stocks?
- Any gifts you may want to award from your estate?
The information on a complex will is almost the same as a simple will, just more complex. See how that works?
Who Needs a Complex Will?
Complex wills are made for people with large estates to give away, and many people to award the estate to.
You might benefit from a complex will if you have had multiple marriages with multiple kids, or if you have a large extended family. If you have a child or children with disabilities, a complex will comes into play by way of a Special Disability Trust. A complex will may also be used if you run a large company.
The Types of Complex Will
There are a few different types of wills that are considered complex. These are used under very specific circumstances only. Here’s a quick rundown of each.
Testamentary Trust Will
You might make a testamentary will if you don’t want to award your estate to a beneficiary/beneficiaries in a lump sum.
Testamentary wills let you leave your estate in a Trust. The Trust is then given to an appointed beneficiary who has complete control over it. The beneficiary can use the Trust in whatever way they see fit, but there are usually some instructions regarding how it should be split/used.
A testamentary Trust will may include multiple trusts awarded to multiple beneficiaries.
This is usually only done with substantially large estates, and it can be costly. It does come with extra taxation advantages and asset protection, though. It can also mean less arguments and disagreements over the estate post-death.
Testamentary trust wills are often given to children or those with disabilities. It ensures them a large sum that they can use as they see fit for schooling, medical bills, and more.
There are sometimes conditions to these wills. For example, the Trust may be awarded to a child only once they reach 18 years of age and are ready to go to university. In that case, the Trust would be awarded when the child reaches 18 and not a day before.
Disability Trust Will
In the same realm as the testamentary trust will is the disability trust will.
A disability trust will is used if the estate is going, at least in part, to a disabled person. It may contain conditions and directions just as a testamentary trust will does. This leaves the disabled person with a trust to dip into whenever they need for medical costs, assistance, and whatever else they may need to thrive.
A mutual will is one entered into by both you and your spouse.
Mutual wills are written in case one spouse dies before the other. The mutual will ensures that the preferred beneficiaries are awarded the estate of each given partner on their passing. Mutual wills cannot usually be changed after written.
Because these wills are so set in stone, they’re not often used. If you’re considering signing a mutual will with your spouse, talk to your solicitor first. It may be beneficial, but it may also be a bad move.
How Do I Know Which Type of Will I Need?
If you’re planning on making a will, you should always seek proper advice rather than going in blind.
Talk with a trusted Wills & Estates solicitor to figure out what kind of will you need. They’ll be able to set you in the right direction. They can go over your estate with you, and make recommendations on who might get what and how.
The Basics of Will Writing
Maybe we’re getting ahead of ourselves here, though. If you don’t have a will, you may need a basic rundown on wills in general. Here are some of the most important things you need to know before making a will.
What Is an Executor?
The executor is a crucial role laid out in every will.
The executor is the one who makes sure the testator’s wishes are fulfilled. They’re in charge of arranging the funeral as well as estate distribution, paperwork, and managing personal assets.
As an executor, you’re responsible for contacting everyone who appears in the will. They must locate all the assets listed in the will, take inventory, and handle any insurance-related coverage for the property. They must also arrange for property to be cleaned out and sold if applicable.
Beyond that, the executor is usually in charge of submitting paperwork associated with the testator’s death. This includes cancelling the person’s government benefits, driver’s license, and any other entitlements. They must file claims for life insurance and pension benefits, and handle the final tax income return for the deceased.
Basically, the executor takes care of all the complex technicalities that come with one’s passing. Considering this, an executor is most commonly an attorney or accountant, but can be anyone. If you’re an executor with no experience, you’ll likely need to seek the help of a professional to make sure everything gets done correctly.
The more complex the will, the more work you’ll potentially have as an executor. When writing a will, make sure you can trust the person you make executor. Pick a professional to save your family the stress.
What Is Testamentary Capacity?
When preparing your will, you may hear the term “testamentary capacity” thrown around. So, what does that mean exactly?
Testamentary capacity concerns the mental state/capacity of the testator at the time they wrote their will. This may come up after the testator is deceased, if one beneficiary tries to contest the will. If they can prove that the testator was not of sound mind, or lacked testamentary capacity, when writing the will then their dispute may be valid.
Testamentary capacity is often assumed and upheld as long as there is no evidence of mental decay. The executor may be responsible for proving mental stability if the will is contested. Some reasons testamentary capacity may be questioned include:
- The testator being ill/in bad condition at the time they wrote the will;
- The testator edited or wrote a new will very close to the time they died; and
- The testator was put into new care (non-family or friends) near the time they wrote their will
This is a big reason why it’s important to write your will sooner rather than later. You want to be at full mental capacity at the time of writing. Don’t leave anything up for debate.
Can a Will be Revoked or Changed?
Sometimes, you want to make changes to your will. Maybe you’ve had a falling out with certain beneficiaries, or you have new assets to award. In this case, you can revoke your old will and make a new one.
The testator can revoke their will at any time. It’s as simple as talking to your attorney and writing up a new one. The attorney may write a note into the new will stating the old will is null and void.
Believe it or not, a marriage usually automatically revokes a will. It’s assumed that if the testator gets married, they want to award their new spouse part of the estate. If you get married after making your will, you’ll likely want to contact your attorney.
A will is considered revoked if it’s destroyed, lost, or written into the new will by the attorney in charge. Considering this, it’s important to keep track of your will so it’s not mistakingly revoked.
How Do I Prepare My Will?
You can prepare your will on your own, but this is not the recommended course of action.
Preparing a will on your own almost always means leaving something or someone out. It also leads to more emotional choices rather than logical ones. What’s more, there’s always the chance of writing something in that cannot be acted on lawfully.
If you’re preparing a will, the best course of action is to contact a trusted Wills & Estates solicitor.
JB Solicitors is an experienced and trusted estate planning law firm. We’ll help you every step of the way, from managing your assets to writing the will and finding a suitable executor. At JB Solicitors, you can rest assured you’re hiring talented solicitors to plan your estate.
You can even get the process started online, right from home! This is the fastest, most affordable way to get started on your will. We’ll set up a meeting with one of our Wills & Estates solicitors for you, and give you a detailed list of the documents you need to finalise your will.
Hire the Best Estate Planning Services Today
Knowing the difference between a simple will and a complex will is just step one. Now that you’re more familiar with will, it’s time to get your estate planning out of the way.
If you’re in the Sydney area and need a reliable estate lawyer, contact JB Solicitors today. We’ll ensure your estate planning is easy, fast, and written to your liking.