Creating a will: what you need to know
What is a will and why do I need one?
A will is a legal document that states how your assets will be distributed after you die. These assets, or the property that you leave behind, are known as your “estate”. These may include items of great monetary value such as your home, as well as sentimental items. Wills may also include wishes about your loved ones such as the care of your children, however these are not always legally binding.
What do I need to consider when writing my will?
When creating a will, you must consider a number of factors. First and foremost, what should be included within a will? The will should outline all of your current assets and give instructions about how to divide these assets. These will be given to beneficiaries, which should be listed in the will. A beneficiary refers to an individual who will receive any money or benefits in the event of your death. The executor must also be listed in the written will as they are responsible for dividing and administering the estate following your passing. You may wish to include other factors such as:
What will happen to any pets you may have
Instructions for sentimental items
Guardianship information (for if you and your partner both pass away)
Instructions for giving a portion of the estate to charity
Information about your enduring power of attorney
Would you like to donate your organs?
Funeral instructions
How do make a valid will?
A will can be created by yourself with a DIY kit, or you may choose to enlist the help of a trustee company or legal professional. To make a valid will you must be over the age of 18. If you get married under the age of 18 or have court permission you may create a will prior to turning 18 provided that you have testamentary capacity For a will to be considered formally valid it must:
Be in writing
Be intended to be your will
Signed by yourself on each page in front of two witnesses, and
Be dated at the time that it is signed
A will is not considered to be valid if it has not been made voluntarily, the individual did not have testamentary capacity or the individual did not intend to create the will.
To create a will you must determine the content , and decide on the executor who will administer your estate after you die. This will come into effect following your passing.
It is suggested that your will be kept in a safe place such as a safety deposit box or with your legal representative. A copy should also be available with your personal papers, as well as a copy given to the executor.
What if I die without a current will?
If you die without a will, the law will decide who gets your estate. The next of kin will be given the estate. This includes partners and children of the deceased. If the deceased does not have a partner or children then the estate will first go to:
Parents
Then siblings
Then grandparents
Then uncles and aunts
And finally, cousins
The estate will only be passed on to the government if the deceased has no living relatives.
What can I not include in my will?
The executor is the individual that is responsible for dividing your estate following your death. This should be an individual that you trust (over the age of 18) who is prepared to take on the responsibility. Often individuals choose to appoint a professional or solicitor to take on this role. What can I not include in my will?
Assets held in trusts
Share of assets owned as a joint tenant
Annuities
Regular compensation or support payments
Superannuation
Where can I find a lawyer to help me draft my will?
Victoria
https://www.liv.asn.au/find-a-lawyer
New South Wales
https://www.lawsociety.com.au/for-the-public/find-a-lawyer
Queensland
https://www.qls.com.au/Directory-Search
https://qldbar.asn.au/baq-home
ACT
https://www.actlawsociety.asn.au/
https://www.actbar.com.au/barristers/find-a-barrister/
Northern Territory
https://lawsocietynt.asn.au/community/lrs-3.html
South Australia
https://referral.lawsocietysa.asn.au/start
Western Australia
https://www.lawsocietywa.asn.au/find-a-lawyer/
http://www.wabar.asn.au/find-a-barrister/
Tasmania
https://tasbar.com.au/barristers/
https://www.lst.org.au/find-a-lawyer/
Updating or changing your will
It is important to keep your will up do date. It must be updated as circumstances change such as marriage, separation, divorce and child birth. You should review your will if:
Family circumstances change (such as when children become adults or in the case of separation and divorce)
Your family members change (such as the birth of a child or death of a loved one)
Your family assets change
Your executors or guardians die or are now unavailable
Something happens to your beneficiary
Your will may be amended for small changes, however larger changes may require the creation of a new will. Following this you should ensure that your earlier will has been cancelled, and this is written into the new will.
Challenging or contesting a will
A will may be challenged if there is an allegation that it is not valid, or because a dependent has not been properly provided for. To avoid this from occurring you should:
Seek legal advice
Correctly describe everyone mentioned in your will by name
Correctly describe all assets
Sign your will and have it witnessed
In the case of a medical condition that may impact understanding, provide a medical certificate that verifies your capacity at the time of making the will
Take into account your family and situation
Ensure your will is updated
Ensure you are not pressured in to creating the will
Consider discussing your wishes with your family
Key considerations
There are a few key things that must be taken into consideration. If you were to separate from your partner, however they are listed as a beneficiary, they will remain a beneficiary unless you change your will. If you get a divorce however, this will automatically cancel anything that you have left to them in your will. If you marry, this generally cancels the will unless you indicate that it should continue in the event of marriage.
Potential familial issues must also be taken into consideration. You may need to consider the possibility of beneficiaries passing away. You must also consider the share of your assets that a beneficiary receives. You may also consider providing explanation for the sharing of your assets.
Statement of wishes
A statement of wishes is a confidential document that is separate to your will. It is intended to provide general guidance for the executors and trustees of your estate following your death. It is not legally binding however may have strong moral influence.
