Different Types of Wills

Estates

There are many different types of Wills available for many different types of situations. Carefully selecting the right type of Will can help your beneficiaries and family in the future.

What different types of Wills are available?

The following are examples of just some of the many Will types available:

Conventional or simple Wills

Conventional or simple Wills are usually a short one or two page document in which the Will maker:

  • appoints an executor to manage their estate after their death; and
  •  usually gives their entire estate to their spouse and if their spouse dies before them, then to their children.

These Wills generally only suit Will makers with limited assets who are in a first marriage with children from that relationship only. The Will is usually unsuitable for Will makers with blended families and/or who have a more significant asset pool.

For more information, read our paper called Good Will/Bad Will by clicking here.

Testamentary Trust Wills

Wills which offer beneficiaries Testamentary Trusts are more sophisticated than the conventional or simple Wills discussed above.

Testamentary Trusts are included in the terms of the Will maker’s Will often making the Will complex and lengthy. The Testamentary Trusts created under the Will lie dormant in the Will until the death of the Will maker. At that stage, generally the beneficiary will be able to choose whether to take their share of the estate as an outright gift or whether to use their own Testamentary Trust as a way to receive their share of the estate.

Testamentary Trusts have many advantages for beneficiaries, especially in relation to tax savings.

For more information about Testamentary Trusts, click here.

Statutory Wills

A Statutory Will is a Will which is made by the Supreme Court on behalf of a person who does not have testamentary capacity to make a Will themselves.

For further information about Statutory Wills, click here.

Mutual Wills

A Mutual Will is a legally binding contract entered into by you and your spouse/partner. The purpose of a Mutual Will is to ensure that when the first of you dies, your preferred beneficiaries are provided for in accordance with your wishes. Mutual Wills generally prevent your partner/spouse from changing their Will, except in limited circumstances.

Mutual Wills can be advantageous in blended family situations. However, they also carry disadvantages in that they lock your Wills into stone and can increase the risk of challenges to you or your spouse/partners Will in the future, for example. They should only be used after careful consideration and legal advice. Mutual Wills should be carefully drafted and documented in writing.

If you are considering using Mutual Wills, you should seek the advice of a solicitor first to determine whether a Mutual Will is right for you.

For further information about Mutual Wills, click here.

Special Disability Trust Wills

A Special Disability Trust is a trust established for a person who suffers from a severe disability. These types of Wills enable the disabled beneficiary to preserve their entitlement to their Disability Pension while still being able to receive benefit from an estate.

There are a number of criteria which need to be met in order for a disabled person to qualify for a Special Disability Trust as well as a number of criteria which the terms of Special Disability Trust must meet in order to be considered a Special Disability Trust.

Special Disability Trusts can be created during your lifetime or under your Will.

For further information about Special Disability Trusts, click here.

All Needs Protective Trust Wills

Where a person is vulnerable, sometimes it is not appropriate to allow a person control over their share of the estate. Beneficiaries who may be suitable for you to create this type of trust in your Will include:

  • A disabled beneficiary who does not meet the criteria for a Special Disability Trust;
  • A beneficiary who might be the vulnerable to the negative influence of others; or
  • A beneficiary who has problems with gambling or drug use for example.

These types of Wills allow the Will maker to appoint a Trustee to manage the vulnerable beneficiary’s share of the estate. This means that the vulnerable beneficiary can benefit from your estate but that their share of the estate is protected.

What type of Will should you choose?

Deciding which type of Will best suits your circumstances can be complex. There are various factors which must be thought through carefully before making a decision about which Will to make. Making the wrong type of Will could lead to costly estate litigation which may have damaging effects on your family or beneficiaries.

We recommend that you seek both legal and financial advice about the best type of Will for you. The dedicated estate planning team at CRH Law can assist you to make the right decisions about the right Will for you, so call us now on (07) 3236 2900 or email us at enquiry@crhlaw.com.au.