Making a Will

What Should My Will Include?

First and foremost, your will must be identifiable by your full name. It will not be considered a legal will if it does not have your full name in it. You will need to include the name of your executor, the names of your beneficiaries (whether these be people, places, organisations, etc), along with provisions for what is to happen to your estate in the event your beneficiaries do not survive you. Your will should include provisions for property (real estate) bank accounts, shares and all other assets owned in your name. Most importantly however, your will cannot be considered a valid will unless it has been signed by you as the testator and your signature witnessed by two individuals who are not family members or beneficiaries.

Can My Will Be Considered Invalid?

A will can be considered invalid if the will-maker is not considered to have testamentary capacity. This means that the mental capacity of the will make is impaired in some way (Dementia, Alzheimer’s, intellectual disability, etc) and they cannot be considered able to make decisions of this nature. 

A will may also be considered invalid if it is made by an individual who has not yet attained 18 years of age. Wills are binding legal documents and they must be entered into by an individual who is legally old enough to make one.

Your will can also be considered invalid if you have not had your signature witnessed correctly by two individuals who are not either beneficiaries or family members. This is an extremely important aspect because it can cause chaos when it comes time to execute the will. 

Donna lives in NSW and has gathered her loved ones to share with them her wishes upon her death. Donna is 96 years old and has been told that she only has a few months left. Donna is of sound mind and has redrafted her will so that it includes some great grandchildren that were only born recently. Donna want the peace of mind that when she passes, all her family are aware of her wishes and how she wants things to be done. Donna notifies her family that along with her will is a series of important documents that they will need including the title to her home and share information. Donna has also left her life insurance paperwork with the bundle so that arrangements can be made for that to be collected. 

Does My Superannuation Need To Be Included In My Will?

Superannuation can be dealt with in a few different ways but they can also all be tied together in one. You can choose to include your superannuation in your will however your superannuation fund will allow you to nominate a beneficiary through them. You can then reiterate that nomination through your will if you choose.

What Happens If I Already Have A Will But Choose To Write A New One?

You are encouraged to review your will every 5 to 10 years so that you can review your assets and estate. If you do choose to make a new will, the previous will cease to be valid and the new will takes its place. There is no requirement that you destroy the previous wills, however you can if you choose, and you only need to ensure that your executor or family knows where your new will is located. It is always easy to update your will as your circumstances change and it is something you should always be mindful of each time you acquire a new asset. At the end of the day, your estate should be divided in the way you want and it is easy things like wills that make that possible. 

Do I Need To Have A Lawyer Write My Will?

It is usually best practice to engage a lawyer to help write your will because it is the easiest way to avoid making a mistake. A lawyer who specialises in wills and estates and estate planning will be up to date on any requirements or legislation that needs to be followed. Having a lawyer write your will also ensures that it is valid upon your death.

You have the option of engaging the Public Trustee to help write your will and subsequently manage your estate however this type of service comes with a fee. The Public Trustee will take a percentage of your estate upon your death to cover their fees and expenses. For smaller estates this may not be much of an issue however, if you have a large estate then this can be an expensive move on your part. 

engaging an estate planning lawyer however ensures that you only pay for the physical work performed by the firm and it can be a once-off fee.

As most are aware however, there is a third option for making a will and that is to do it yourself (DIY) through a will kit. This is not an advisable option in most cases as individuals rarely know the Australian requirements for making a valid will and even one small wrong word can affect the validity of your will upon your death. It really is preferable that you allow an expert to draft your will to ensure this cannot happen.

Where Should I Keep My Will?

Most lawyers will advise you to leave the original copy of your will with them so that they can keep it in a safe place. This usually means that they will store it in a fire proof safe. You will usually be provided a copy of your own will to take home so that you can give it to a family member or keep a copy on you for peace of mind. If you do choose to keep a copy of the original will with your lawyer, it is best if someone in your family knows which firm you have chosen, just to make things easier upon your death. However, don’t be alarmed. Law firms are required to monitor death notices to ensure that their services are not required so in the event your family does not know where your will is held, they will be notified.

What Is Probate?

Probate refers to the legal process of determining a wills validity. The Supreme Court needs to legally identify the will as valid before it can be executed. This is a long process for many as there is often a back log of estates awaiting probate confirmation however for most it is just a formality. In certain circumstances, the will may be considered invalid and the state (state trustees) will need to step in to identify how the estate is going to be divided. This is a rare occurrence however if a will has been drafted properly. 

What If I Die Without Leaving A Will?

In the event you die without leaving a will then your estate will automatically transfer to your next of kin. This forms part of a line of succession that begins with your father, then transfers to your mother, then your eldest sibling, etc. At the time of your death, your next  living relative will be identified and they will be considered your beneficiary. If no living relative can be identified (which is often the case with elder testators) then your estate will be declared intestacy. This is also why it is important to make sure you leave the original copy of your last will in a safe place. In some circumstances, a copy of your will may not be able to be produced if you have not told anyone about it or allowed the original to stay in a safe place. This is why lawyers act as custodians of your will so that it remains protected.

Is There Any Other Paperwork I Need To Complete Along With My Will?

Whilst it is not strictly necessary, you may want to consider appointing an enduring power of attorney at the same time you complete your will. This will allow a person of your choosing to make financial decisions on your behalf in the event that you are not able to. This is common practice with the elderly or disabled as it easily allows family members to complete banking and other like tasks for them. This is an easy safeguard to put in place in case you become ill, injured or incapacitated unexpectedly.