Before children, I would have never thought to do a will. Even as I acquired some assets, I figured the state could work out what to do with all that debt. But all that changed when children came along and the need to protect them from beyond the grave suddenly became a priority.
My mum said it was a good idea and sent me multiple links to different DIY will kits. My friend asked if it was needed. “Do you really care? You are dead!” My partner asked if it was that important right now. We were relatively young and healthy. We had a lot on the to-do list and not nearly enough time to do it all.
But “life is unpredictable!” I exclaimed, quoting something I had read online.
Of course, I had already consulted the internet, which gave me legal definitions for intestacy (no will), testamentary capacity (whether you are of sound mind when making your will), and the dire “calamity clause” (when everyone dies together). I also found stories of bitter family feuds and sibling rivalries. I get it, no one wants a story where everyone gets what they want and there is no conflict whatsoever. Yawn.
But that didn’t help me figure out what I needed to do so I decided to speak to someone who could help me with more empathy and less drama.
Emily Spall, an estate planning lawyer in Melbourne and a mother of two, talks me through the fundamentals for parents to consider.
“The most important thing is to nominate executors or trustees who will manage your money or your children’s money until they reach the age that you specify,” Spall says.
The second most important thing is guardianship. “If there is no will, the court has no direction as to who you think is the right person, so it’s up to relatives to apply – leaving loved ones to argue about your loved ones.”
However, the court can still overrule even if there is a nominated guardian. But this would usually be in special circumstances, like if a guardian was chosen some years ago and is no longer the best person – due to illness, for example.
My first instinct was to appoint my parents as they do so much child caring now. But I’m gently reminded that I should consider someone who I will likely outlive, which leaves siblings as the next most obvious group of people to consider.
Between my partner and I, we have three sisters. How do we choose?
“Who gets along with your kids? Who sees them the most? Who will raise them in a similar way to you, worry about the same things, make considered decisions about schooling, medical?” Spall asks. Some people don’t appoint relatives, but rather friends.
Some other recommendations include choosing an executor who is good with money (and that person doesn’t have to be the guardian; in that instance, the guardian would consult the executor to access the funds); nominating 25 years of age (not the default 18) for your children to take control of their inheritance, because by then they may have done some tertiary or apprenticeship studies and be a bit more settled; and finally adding the aforementioned calamity clause, which outlines what happens if you, your partner and your dependents all die at the same time.
The latter can spark arguments and minor disagreements between couples.
“A 50-50 split between families may seem fair but what happens when there are eight siblings on one side and only one on the other? It digs deep into values, and some couples don’t ever agree and leave it out,” says Spall.
For parents whose household budgets are stretched right now, it’s worth remembering it might cost you more in the long run if a will is not done correctly to start with, which means less money for your kids. Spall cautions: “If there is contest, that all comes out of your estate.”
To think about your own and your family’s mortality feels dark, and as a busy parent it might be low on your list of priorities. But making a will was less effort than I thought it would be – and it might make you feel a little lighter knowing you’ve made things easier for your loved ones in the future.
• Lucille Wong is a Melbourne writer and a mother of two
