Simple Will vs Complex Will
Every competent adult in Australia needs to make a last will and testament to dispose of their property after their death, otherwise their deceased estate will be administrated according to intestate succession law. A will can be prepared in several different ways, depending on the testator’s circumstances and other factors. Wills can be divided into two main types: simple and complex. A simple will typically bequeaths each beneficiary a lump sum or percentage of the estate, while a complex will has other elements, such as a facility for testamentary trusts. This article outlines the difference between simple and complex wills and explains some of the options when estate planning.
Unsurprisingly, a simple will is written to be as straightforward as possible. A simple will is usually easy for an executor to understand on first reading. It is typically a short document that names individuals and organisations to receive a share of the deceased estate. A will that leaves an entire estate to a spouse is a good example of a simple will.
With this type of will, the executor of the estate follows the directions in the document to distribute bequests to the chosen beneficiaries. The testator may make bequests in a set amount or percentage of the estate, or he or she may list specific bequests of property, for example leaving a piece of jewellery to a granddaughter or a set amount of money to a charity.
In order to prepare a simple will, a testator needs to ask themselves only a few questions:
- Who do they trust to act as their executor?
- Who do they wish to inherit their possessions?
- If the testator has minor children, who do they wish to look after the children?
- If a beneficiary predeceases the testator, who will inherit the provision made for that beneficiary?
- Do they wish to leave anything to charity?
- Have they made arrangements for the care of any domestic pets?
A complex will is obviously a more complicated legal instrument than a simple will, but it allows the testator to distribute their estate in a more controlled and detailed fashion. A testator may choose to create a complex will if they:
- own different assets classes, or assets held in different countries;
- intend to obtain more complex assets in future;
- own a complex business or a business that may continue to operate after their death;
- intend to create a charitable trust;
- intend to establish a special disability trust or a testamentary trust for minor children or other vulnerable beneficiaries;
- wish to create complex conditional bequests; or
- wish to make less traditional choices, such as provision for a former de facto or marital spouse and/or not make provision for close family members, such as current spouse or children.
A testator who makes a complex will needs to prepare the same information as someone making a simple will, but they will also have to gather additional information and documentation. For instance, if a testator intends to create a disability trust, government regulations require that the testator obtain certain Centrelink documentation that would not be necessary when preparing a simple will.
Testamentary Trusts in Complex Wills
On occasion, a testator wishes to make provision for a person or purpose but does not wish to make an absolute gift because the testator wishes to direct how the funds are used. One mechanism to achieve this control after death is to create a testamentary trust. This type of trust disseminates some or all of the deceased estate according to the testator’s instructions over a period of time or upon the achievement of a certain event. Either the beneficiary will have control over the trust, or a trustee will administer the trust.
A trust can be a costly approach but it does have taxation and asset protection advantages. It also may be necessary when the testator has young or disabled children who cannot administer their own financial affairs. In such cases, the trust will provide for the genuine needs of the beneficiary, including education, medical and living expenses. However, a testator should think carefully before making such an arrangement, not least because there is no way to predict what will happen in the future. For example, a beneficiary who only receives access to the trust when they graduate from university may never benefit from the gift if they pursue a vocation that does not require higher education.
A young testator with limited assets and an uncomplicated family structure can make a simple will that is clear and concise and leaves little room for misunderstanding. However, any testator with numerous assets and beneficiaries and intricate conditions or trusts will require a more complex will. It is essential to consult a legal professional when preparing a complex will. Even if you only need a simple will, it is still best to consult a solicitor to make sure your testamentary wishes are clear and legally binding. Please contact or call 1300 038 223 today to get started with estate planning.