July 13, 2024

Existinglaw

Law for politics

6 Reasons to Avoid DIY Will Kits

5 reasons an 'At Home Will Kit' is a bad idea - Johnston Withers…

The biggest favour one can do for their family and well-wishers is making a valid Will. If there is no Will, an estate is intestate after the owner’s death, and the process of dealing with it is quite complex. Therefore, it is invariably better to create a valid Will. 

It not only benefits one’s family but also helps the Will-maker to distribute their assets as per their own Will. 

One can create a Will by following one of the two common ways. One way is through an experienced lawyer in Wills. The other is by using a free or inexpensive DIY Will kit. 

Yes, you read it right! You can create your own Will using a DIY Will kit. You can get one from a post office or an online website. However, it is only subpar compared to the other professional way. Using a DIY Will kit comes with hidden costs, which your beneficiaries will be left to deal with. 

What are those disadvantages? Should you or should you not go for it? What should you do instead?

Let’s answer these questions in this blog post! 

Reasons to Avoid DIY Will Kits

Ask a professional, and they will give you many reasons to avoid using DIY Will Kits. All that you saved in the making of Will with this kit will eventually have to be spent. 

  1. Tax Problems

Australia has no Death Duties. However, Will making is considered a “live” case. 

Therefore, if a Will is not drafted correctly, it could result in additional tax liabilities that were not payable otherwise. 

For example, a superannuation death benefit is exempted from tax. However, in this case, tax is applicable on superannuation benefits after passing them on to beneficiaries. 

Similarly, though all beneficiaries appear to inherit equal shares under the Will, a badly written Will may benefit one beneficiary more than the others. It happens because of the failure to account for embedded taxes on Capital Gains.

  1. Stamp Duty

If the beneficiaries want to receive real estate interests in different proportions from what the Will specifies, gifts of real estate made under a Will may be subject to stamp duty. 

Say, if a property has two beneficiaries but only one of them wants to keep it. Then the other beneficiary would need to “buy” the other half of the property and pay stamp duty on that purchase. This equalises the rights between both of them. 

  1. Incomplete Will Kit

A Will contains many vital sections. Leaving them blank could make the whole probate process much more complicated. 

Because the Will-maker used a DIY kit to create the Will, there is a high chance of overlooking the simplest of simple questions. This creates problems with the validity of the Will. 

And proving the validity of a Will is a long, strenuous process as the testator in question would be no more. 

  1. Lack of Witnesses

According to law, the testator (Will-maker) must acknowledge the signature in the presence of two or more witnesses. Additionally, all witnesses must be present at the same moment. 

The Court may waive formal requirements for the execution, amendment, or revocation of a Will, including in cases where it has not been properly witnessed, as outlined in Section 8 of the Succession Act 2006 (NSW). 

However, DIY Wills are considered “informal Wills” when just one person or none has witnessed them. It will pose problems when applying for a Grant of Probate.

  1. Damage to the Will

The Executor must address the damage to the Probate Registry if the Will has been damaged. The damage may occur in any of the following ways. 

  • torn, wrinkled, stapled, or shredded;
  • has paperclip marks; 
  • was written in a different pen midway through; or 
  • contains revisions that the writer of the Will and the witnesses has not acknowledged. 

This can cost a lot of money.

  1. Identify Estate and Non-Estate Assets

Various trusts and funds can hold assets, and Will-Kits users frequently give away possessions that are not in their names or choose not to give away assets they own. 

Additionally, there are particular restrictions for assets held in superannuation and family trusts. Thus it is essential to appropriately classify estate and non-estate assets when creating a Will.

To understand all these classifications, you must have the help of a good solicitor. 

Final Say

The use of DIY Will Kits and the procedures for validating the Will through the Probate Registry also give rise to several other issues. 

With broken restrictions, there can be significant delays and expenses, and the individuals handling the Will after the Will-maker’s passing away may face expensive and complicated issues. 

If the Court rules a Will invalid, it may revert to an earlier Will or consider the case intestate. In such cases, the distributions of assets may be contrary to the testator’s wishes. 

You can avoid many issues like these by working with a Solicitor to prepare a Will. The bottom line is that not every inexpensive way is necessarily better. 

In need of a Wills Lawyer?

Have a look at Probate Consultants, the best professionals in estate planning, who can answer your every Probate question—from what is probate to how to apply for a Grant of Probate.

We hope this article helped you understand the importance of taking the help of a solicitor in Will preparation.