Montane Will
Frequently asked questions
▶ What is Montane Will?
▶ What is an executor?
▶ Is my Montane Will recognised in other countries where I have property?
▶ What does the term “sound mind” mean?
▶ Is my Montane Will recognised in other countries where I have property?
▶ What are the duties of an executor?
▶ I can speak and read English but I can’t sign my name. Can I make a Montane Will?
▶ Can I have multiple Wills?
▶ Who can make a Montane Will?
▶ When do I need to update my Montane Will?
▶ What is intestate?
▶ Why do I need a Montane Will?
▶ Can I make a joint Montane Will with my spouse?
▶ I have a relative who is blind. Can they make a Montane Will?
▶ I’m not 18 Yet? Can I Make a Montane Will?
▶ I can speak English but I don’t know how to read it. Can I make a Will?
▶ Should I keep a copy of my old Will if I make a new Montane Will?
▶ What is a Montane Mutual Will and what is it used for?
▶ The executor of my Montane Will has died. What do I do now?
▶ Can I appoint a guardian in my Montane Will?
▶ What must I do if I gain a child through fostering or a blended family arrangement after I have made my Montane Will?
▶ What happens if one of the people who witnessed my Montane Will dies?
▶ Is my Montane Will recognised in states and territories other than where I made it but where I have property?
▶ What happens to my superannuation when I die?
▶ What is a testamentary trust?
▶ Is my life-insurance policy part of my estate?
▶ My shares are owned in joint names with another person. What happens to them if I die?
▶ Who gets what I own if a beneficiary in my Montane Will dies after I do but before the executor pays them?
▶ If my executor refuses, before I die, to act, what can I do about it?
▶ I have additional questions about Montane Will. Who can I contact?
What is Montane Will?
Montane Will is a personal legal document that protects you and the people you care about. Montane Will allows you to decide who gets what you own when you die. This includes personally owned assets such as land, treasured heirlooms and intellectual property.
Montane Will can also name a guardian for dependent children in your care, which allows you to take care of your kids after your death.
Plus, you can outline your wishes for your funeral, burial or cremation in Montane Will.
What is an executor?
An executor of a Montane Will is the person who is supported by their Montane Legacy Consultant to make sure instructions in the Montane Will are carried out.
Is my Montane Will recognised in other countries where I have property?
Probably, yes. Although the laws vary. It is best to speak with a lawyer from the particular country in question to find out of there are details you need to be aware of.
What does the term ‘sound mind’ mean?
To make a legally-binding document, you must be of sound mind. This means you have the ability to make and be held by legal decisions. You are of sound mind if you can understand the nature and effect of decisions you are making and you are able to communicate them.
Some events may cause a permanent or temporary loss of sound mind. These include:
- some psychiatric conditions
- some genetic conditions eg Down’s Syndrome
- some degenerative conditions eg Alzheimer’s Disease
- some effects of severe stroke
- some effects of drugs, either medicinal or otherwise
- some effects of advanced age
- brain damage or unconsciousness induced by accident or trauma.
It is not always straightforward to determine whether or not someone is of sound mind. And a legal document made by someone not of sound mind is not valid.
Rest assured, Montane Legacy Consultants have the most up-to-date knowledge and experience to assess for sound mind and to advise about what to do when there are doubts.
Is my Montane Will recognised in other countries where I have property?
Probably, yes. Although the laws vary. It is best to speak with a lawyer from the particular country in question to find out of there are details you need to be aware of.
What are the duties of an executor?
When the maker of a Montane Will dies, their executor has several tasks to arrange, including:
- obtaining a grant of probate
- organising the Montane Will maker’s funeral (if it’s not done by a family member)
- ensuring they have the most up-to-date version of the Montane Will of the Montane maker
- collecting the assets of the Montane Will maker and sometimes to convert them to money by organising the sale of them
- paying the Montane Will maker’s debts
- distributing assets and property of the estate according to specifications in the Montane Will.
Montane provides support and information from the time of making the Montane Will, changing it and administering it so that executors carry out their role with clarity, knowledge and organisation.
I can speak and read English but I can’t sign my name. Can I make a Montane Will?
Yes. Your Montane Legacy Consultant will advise you on the special procedures that need to be followed to make sure the Montane Will is valid.
Can I have multiple Wills?
Usually, no. When you make a Montane Will, it replaces any earlier Will in your name.
One exception is when you own assets outside of your country of residence, it is possible to have multiple Montane Wills, each dealing with assets in different countries. A Montane Legacy Consultant can guide you through this complicated situation so you get a legacy plan that best protects what you own.
Who can make a Montane Will?
If you’re 18 years of age or older and are of sound mind, you should make a Montane Will.
By making a Montane Will, you access the best support and information to help you take control of your legacy.
When do I need to update my Montane Will?
Because your life is evolving and changing, legacy planning is an ongoing process. You must update your Montane Will when:
- you marry or are getting married
- you have a child or grandchild
- you separate from your spouse/partner
- your spouse/partner dies
- you sell something you own that’s specifically gifted in your Montane Will
- the executor or guardian nominated in your Montane Will dies or is incapacitated
- a beneficiary dies
- there is a major shift in what you own.
Plus, Montane customers review their Montane Wills every two years to stay on top of changes.
What is intestate?
If you die without a valid Will, the government and courts decide on your behalf who gets what you own and who looks after your kids. Lawyers call this “dying intestate”.
The decision by the government may not be how you would like it to be. By that time, though, it is too late to have your say.
Laws about dying intestate vary between states and territories worldwide. Examples of what may happen are that your spouse/partner gets the whole estate or your spouse/partner gets a share with children or relatives getting the balance. The scenarios become more complicated with blended families.
If you have children under 18 and no valid Will, the laws of the state or territory where you live will decide who raises your kids. That person may not be the person you would have picked to bring up your children.
Why do I need a Montane Will?
If you die without a Will, the government or the courts decide who looks after your kids and who gets what you own.
By making a Montane Will, you control who gets what you own and who looks after your children who are under 18 after you die.
So, with a Montane Will, what happens when you die is your choice.
Can I make a joint Montane Will with my spouse?
No. Regardless of your marital situation, you are an individual with individual needs and wishes. You must create your own Montane Will.
I have a relative who is blind. Can they make a Montane Will?
Yes. A Montane Legacy Consultant is able to guide you through the special procedures that must be followed to make sure the Will is valid.
I’m not 18 yet. Can I make a Montane Will?
Usually, no. Depending on the laws of your state or territory, there may be exceptions to the rule. These include:
- if you’re married or about to marry
- if you serve with the armed forces or you’re a mariner or seaman at sea
- you’re a prisoner of war
- you have court approval.
I can speak English but I don’t know how to read it. Can I make a Will?
Yes. Your Montane Legacy Consultant can advise you about the special procedures that need to be followed to make sure your Montane Will is valid.
Should I keep a copy of my old will if I make a new Montane Will?
It’s not a good idea to keep copies of wills that have been replaced. This leads to problems if the executor seeks a Grant of Probate on an old will, unaware it has been replaced by a new one.
So, once your new Montane Will is signed, destroy the old one. If you want to keep it for some reason, write on the will the phrase “replaced by Montane Will dated …” so you can communicate the existence of a newer will.
What is a Montane Mutual Will and what is it used for?
If you decide to not create a trust for your estate, a Montane Mutual Will is an alternative to keep your family protected and reduce family disputes.
A Montane Mutual Will is made between two parties who agree to make gifts to specific beneficiaries and not alter their Wills without agreement from one another.
A mutual will is often used between married people who are keen to ensure that if one of them dies, their property will go to their children rather than a new spouse or partner.
They are also useful in blended family situations where people have children from prior relationships.
The Montane Mutual Will is carefully worded and structured in order to make sure the intentions of both parties is clear. This way, the chances of dispute are minimised.
The executor of my Montane Will has died. What do I do now?
Your Montane Legacy Consultant would have advised you at the time of writing your Montane Will that you should nominate multiple executors. If you have followed this advice, the remaining, back-up executor(s) is now your executor.
If you did not appoint multiple executors, you need to create a new Montane Will with a new executor.
Can I appoint a guardian in my Montane Will?
A guardian can be appointed in your Montane Will to take parental responsibility for a child under the age of 18.
If you do not appoint a guardian in your will, a guardian will be appointed by the courts.
What must I do if I gain a child through fostering or a blended family arrangement after I have made my Montane Will?
Foster children and stepchildren are not counted as “your children” if that’s who you leave a gift to in your Montane Will.
However, if you choose to adopt a child, they are legally regarded in the same light for the purposes of your Will as “your children” and are entitled to gifts under that clause.
What happens if one of the people who witnessed my Montane Will dies?
This has an effect only if there is a dispute about the signing of your Will and the witness is required to give evidence.
Is my Montane Will recognised in states and territories other than where I made it but where I have property?
Yes. There are laws that make this possible.
What happens to my superannuation when I die?
That depends.
If your super fund accepts “binding death benefit nominations”, and if you have one, your super funds will transfer to the person you have nominated.
If you nominate your spouse or dependent in your binding death nomination, the death benefit will not form part of your estate and will be paid directly to them.
You can nominate your estate in the binding death benefit nomination. Then your estate can distribute the funds.
A binding death nomination lapses every three years and must be renewed.
What is a testamentary trust?
This is a trust created with the assets from a deceased estate. The trust is activated upon the Will-maker’s death.
There are several ways to structure a testamentary trust. Most commonly, money and other assets are given to the trust and the trustee makes discretionary distributions to the family and relatives of the Will-maker.
A testamentary trust may also include a life interest. This is where the trustee is given an asset to hold for a beneficiary’s lifetime, then the asset is sold or given to someone else when the beneficiary dies. This is common in the case of family homes, for instance. A trustee may also hold money for a child, who receives it when they turn a certain age.
Testamentary trusts are a good strategy for avoiding unknown circumstances. For example, if a child is named as beneficiary but becomes involved in drugs or becomes a bankrupt, money and assets given them in a Montane Will may be used in ways the Will-maker did not predict. The trust enables the consideration of present circumstances in the distribution of an estate.
Is my life-insurance policy part of my estate?
No. Your life-insurance is distributed according to the contract you signed when you took out the policy. That contract overrides any clause in your Montane Will.
When you took out your life-insurance policy, you would have nominated a beneficiary of the policy. When you die, the nominated beneficiary gets the payout from your policy.
You have the option of nominating yourself or your legal representative as beneficiary. This means the payout of the policy goes directly to your estate and can be distributed by the executor.
Keep in mind that nomination of a beneficiary lapses after a specific amount of time in most policies. Sometimes this can be as little as three years. After the specified time, a beneficiary of the policy must be renamed, or else there must be expensive and time consuming court action to prove entitlement to the money from a beneficiary.
Check your policy to make sure your beneficiary is updated according to the requirements of the policy.
My shares are owned in joint names with another person. What happens to them if I die?
Different company constitutions have different rules about this.
Usually company constitutions say shares held jointly by two or more people are held as joint tenants. This means upon the death of one party, the shares automatically pass to the other joint tenant. Keep in mind that these won’t form part of your estate and can’t be dealt with under your Montane Will. Superannuation shares usually fall within this category.
Who gets what I own if a beneficiary in my Montane Will dies after I do but before the executor pays them?
You can include a clause in your Montane Will that specifies a survivorship period. If the beneficiary dies within that period, the Will will be administered as though they had died before you.
If my executor refuses, before I die, to act, what can I do about it?
You can’t force someone to be act as your executor, even if they once agreed to.
In the event that they later refuse, you can change your Montane Will or make a new one naming a new executor.
I have additional questions about Montane Will. Who can I contact?
To get the extra information you need, you can contact our helpdesk.
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