Key points | What is a Will ? | What if I don’t have a Will? | The requirements for making a Will | What about homemade Wills? | Appointing an executor | Who should I appoint as my executor? | Special Requests | Appointment of guardian for minor children | Can my Will be challenged? | What is Probate? | What about my superannuation? | Where to get help | How we can help | More to explore | Download PDF
A Will is probably one of the most important legal documents that most people will sign during their lifetime so it’s important to get it right. This information sheet outlines some of the things you need to consider.
A Will determines, among other things, the following:
Writing a Will can help avoid uncertainty and dispute after you die.
If you die without a Will, you die intestate. In this situation your estate is distributed in accordance with a Government formula that is inflexible.
This often creates problems that include:
A Will is a legal document. There are requirements that will ensure that the Will is valid. They are:
If a Will doesn’t comply with all of these requirements it may be held to be invalid and the Willmaker will die intestate (without a Will).
While ‘Do it Yourself’ Wills are quite common and seem easy to prepare, they often result in difficulties. The most common problems are:
You should seek legal advice in the preparation of your Will.
Your Will will nominate an executor. Your executor is responsible for administering your estate. Their main duties are:
Because the job of executor can be time consuming and complex, you should appoint one or more people who are prepared to take on the job and who you trust to carry out your wishes. This might be:
You can provide instructions in your Will relating to matters such as:
If you don’t want to put this information in your Will you can write it down separately and give it to your executor. This will make their job much easier.
You can specify in your Will who you want to take responsibility for children should they be young when you die. It is the guardian’s job to make the important life decisions for the children while they are under eighteen years of age.
You can also provide some instructions for the guardian about the types of decisions you want them to make.
The appointment of a guardian can be complex because you often have to balance sensitive family relationships.
As a Will maker, you can give your assets to whoever you choose. However, you should be aware that if you exclude a child or a spouse from the Will then there is a good chance that the Will will be challenged.
You should always get advice if you are planning to exclude a close family member because if your Will is challenged the value of the estate may be reduced by legal fees as a result.
If you have good reasons for excluding someone it’s a good idea to write down the reasons why and store this document with your Will.
Obtaining probate of a Will refers to the process of applying to the Court for an order that the Will is valid and that the executor has the authority to start collecting the assets of the estate.
A probate application is made to the Supreme Court by the executor of the Will. As part of the application the executor is required to disclose to the Court a full summary of the assets and liabilities of the estate.
Not every Will needs probate. It will depend on what assets are in the estate. You will always need probate if the deceased was the sole owner of real estate or had large share holdings or bank accounts.
Your superannuation and any life insurance attached to it is not automatically part of your estate.
During your lifetime your member balance is held on your behalf by the trustee of your super fund.
At your death, the trustee then needs to work out where to pay the benefits (eg directly to one of your dependents or to your estate). The trustee’s decision will depend on whether you have made a beneficiary nomination. Nominations are either binding or non-binding.
You should deal with your superannuation when you do your Will.
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Produced in partnership with Maurice Blackburn Lawyers.