YourLifeChoices members have queries about ‘homemade’ alterations to a will and a plan to pass on half a home to ‘children’. Estate planning lawyer Rod Cunich explains how they should proceed.
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Q. Glenda*
We had our wills compiled via the Red Cross service some years back but when we followed up with the organisation who did it for us at the time, we established that the firm no longer existed. Using the wills compiled at that time, we effected some changes to the documents ourselves and have signed them. Is there a body with whom they need to be registered? What is the process I should follow to ensure they are legal and valid please?
A. In short, you’ll have to see a solicitor to check the documents. Homemade changes to wills are often invalid as they don’t comply with formal legal requirements concerning format and/or execution.
The public trustee services in each state will often review and draft free wills but usually require that you make them your executor, which can result in very expensive administration of your estate. It’s often financially better to pay the cost of a solicitor up front.
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Q. Linda*
If I pass before my husband, can I leave my share of the family home to our two children on the condition that the house can only be sold if my husband wants to sell?
A. You can achieve your desired outcome but you may need to do a few things to achieve the result.
First, find out if you own the property as joint tenants or tenants in common. Only if held as tenants in common can you achieve the outcome. It is an easy and relatively cheap process to change from joint tenants to tenants in common if necessary.
Once the title is tenants in common, there are several ways to then implement your plan.
You’ll need tailored legal advice to determine which is best in your circumstances. It may be as simple as including a conditional gift to your children, but to minimise chances of dispute between your children and husband a more complex arrangement may be required.
The good news is that you can achieve your wishes.
* Not their real names.
Rod Cunich is a lawyer with more than 30 years’ experience who specialises in estate planning. He is also the author of Understanding Wills and Estate Planning.
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