Gifts in a Will
Your will should accurately reflect your wishes for the distribution of your property which is to take effect on death.
You can choose to leave your assets to anyone you like, however if you do not provide adequately for your spouse or any other dependants, they may be able to make a claim against your estate.
There are 2 main types of testamentary gifts:
Specific gifts provide for a particular item or group of related items to be given to a particular person or people. For example, “I give my diamond engagement ring to my daughter” or “I give all of my jewellery to my daughters in equal shares”.
Forgiving a debt someone owes is another way of making a specific gift. For example, “I forgive the $5,000 loan made to my son for the purchase of his car”.
You may also specify a particular amount of money that you wish to give to a relative, friend or charity.
Real property can also be given away (depending on the ownership of the property) or you may wish to allow someone to live in a property for a period of time.
Specific gifts are generally distributed before any general or residuary gifts are distributed.
It is important to note that only the specific items described can be gifted. Therefore, if you no longer own the particular item being given at the date of your death, the gift will fail.
The residue of your estate is what is left after payment of all costs, debts, taxes and all specific gifts have been distributed.
You may choose to give the residue of your estate to one person, or provide that it be divided amongst a number of people in equal or unequal shares.
You also have the option of providing alternative beneficiaries. For example, “I give the rest and residue of my estate to my husband, however if he predeceases I give it to my children equally”.
If you do not have a residuary clause in your will, any remaining assets will be distributed in accordance with the rules of intestacy.
Gifts intended to be given under a will may fail for a number of reasons, such as:
- The item to be gifted is unclear
- The beneficiary of the gift is unclear
- A specific gift is no longer owned at the time of death
- The beneficiary dies before you
It is important to ensure you have a properly drafted will which states specifically which items you are giving away and clearly identifies the intended beneficiary. For example, a gift may fail if your will specifies “I give my house to my son” if you own more than one house, or have more than one son.
Finally, we strongly recommend that you keep your will updated as your circumstances change.
If your current will does not accurately specify your wishes or your circumstances have changed and you wish to update it, please contact one of our expert estate planning lawyers on 07 3106 3016 or email us by using the form on this page.