Free Will Kits: Are Free Will Kits Really Free?

Last updated: 30 June 2024

Are Free Will Kits Really Free? – Free Will kits provide a simple and affordable way for people to write their Wills without paying high legal fees upfront. These kits, available online or through banks and public trustee services, make estate planning easier. However, it’s important to be aware of possible hidden costs and legal issues that might come with using these free options.

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“Free” Will Kit Fees

What fees will my estate have to pay after my death if I use a free Will kit?

Using a free Will kit can help you avoid upfront legal fees, but there are still potential costs that your estate might incur after your death. These fees can vary depending on the size and complexity of your estate. There are a number of fees and expenses that your estate might face after your death:

• Executor fees: Executors can charge a fee for their services, a percentage of the estate’s value or a flat fee. These fees can vary significantly based on the complexity and size of the estate.
• Probate fees: There are court fees when applying for probate (the legal process of validating a Will). These fees vary by State and Territory in Australia.
• Legal assistance fees: The estate must pay for these services if the Executor needs legal assistance to navigate complex issues or disputes. Even with a well-drafted Will, legal advice might be necessary to handle certain aspects of estate administration.
• Accountant fees: The Executor may need to hire an accountant to handle the estate’s financial matters, including preparing final tax returns and managing the estate’s finances.
• Property appraisal fees: If the estate includes real estate, art, jewellery or other valuable items, professional appraisals may be necessary to determine their value for distribution or sale.
• Business valuation fees: A valuation may be required if the estate includes a business or business interest.
• Property management fees: If real estate needs to be maintained or managed before it can be sold or distributed, there could be ongoing costs such as property management fees, maintenance, and insurance.
• Investment management fees: Fees for managing the estate’s investments or financial assets.
• Funeral expenses: These costs can include the funeral service, burial or cremation, and related expenses. Although some people pre-pay for their funeral, the estate often covers these costs.

How your Will is administered after your death depends on decisions made by your Executor. They will decide if any of these various “additional” services listed above are really required. So choose your Executor wisely if you want to avoid your estate paying unnecessary fees.

How much are estate administration fees typically?

Executor fees are typically charged as a percentage of the total value of the estate. Depending on the state and complexity of the estate, this percentage can range from 1% to 5%.

NSW Trustee & Guardian charges an Executor Commission up to 4.4% of the gross value of the estate assets collected and up to 5.5% of income collected during the administration. Additional management fees can be charged for ongoing management of estate assets.

The Public Trustee of Queensland charges Executor Fees up to 2.75% on the first $200,000 of the estate’s gross value, 2.2% on the next $800,000, and 1.1% on amounts above $1,000,000.

But remember, these are just the Executor fees. This does not include the possible probate, legal assistance, accountant, property appraisal, business valuation, property management, investment management and funeral fees your estate may be charged.

Are there options to minimise free Will kit fees?

While a free Will kit helps you avoid initial legal fees, your estate will likely still face various costs associated with probate and administration. To minimise these:

1. Appoint a capable Executor: Choose an Executor who is capable and willing to manage the estate efficiently, potentially reducing the need for professional assistance.
2. Have a clear and comprehensive Will: Ensure your Will is clear, comprehensive and updated to minimise disputes and the need for legal clarification.
3. Pre-plan your funeral arrangements: Consider pre-planning and pre-paying for your funeral to reduce the burden on your estate.

How Free Will Kits Work

What is a free Will kit?

A free Will kit is a package typically containing materials and instructions to help you write your own Last Will & Testament without the need for a lawyer. The package typically includes:

• Standardised form that can be customised with personal information and specific bequests.
• Instructions on how to fill out the form and information about signing the Will and having it witnessed.
• Examples of completed Wills to help you understand how to structure your own.
• A checklist to ensure all aspects of the Will are considered, such as appointing an Executor, guardians for minor children and distribution of assets.

Free Will kits are often provided as part of a new funeral insurance, or life insurance policy. Otherwise, they are often available from various websites, legal centres, and public trustees.

Free Will kits are particularly useful for individuals with straightforward estate planning needs and limited resources. However, for more complex estates or specific legal concerns, consulting a lawyer is always advisable.

Are free Will kits legally binding in Australia?

Yes. Free Will kits can be legally binding in Australia, provided that they meet the legal requirements for a valid Will. The key requirements for a Will to be considered valid in Australia are:

• The Will must be in writing, including handwritten, typed, or printed documents.
• The person making the Will (the Testator) must be of sound mind.
• The Will must be made voluntarily, without coercion or undue influence from others.
• The Will must be signed by the Testator in the presence of at least two adult witnesses present at the same time.
• To avoid conflicts of interest, witnesses must be independent, meaning they cannot be beneficiaries or the spouse of a beneficiary.

Any deviation from these legal formalities can result in the Will being contested or deemed invalid.

Do I need to have my free Will kit notarised or registered?

In Australia, for a Will to be legally valid, it must be witnessed but does not need to be notarised or registered.

Can I change or revoke a Will made with a free Will kit?

Yes. You can change or revoke a Will made with a free Australian Will kit. There are several ways to do so:

• Codicil: A Codicil is a legal document that amends, rather than replaces, an existing Will. It must be executed (i.e. signed) with the same formalities as the original Will. It must be in writing, signed by the Testator and witnessed by two independent witnesses who are present at the same time.
• New Will: You can create a new Will, typically including a clause stating that it revokes all previous Wills and Codicils. The new Will must be signed and witnessed according to the same legal requirements as the original Will.
• Revocation: You can revoke a Will by physically destroying it. This should be done by the Testator or by someone else in the Testator’s presence and at their direction.

In many Australian jurisdictions, getting married automatically revokes a Will unless the Will was made in contemplation of that marriage. In some cases, divorce or the dissolution of a civil partnership can revoke parts of a Will that pertain to the former spouse, though this can vary by jurisdiction.

Are there any reputable providers of free Will kits in Australia?

Yes. Several reputable providers of free Will kits exist in Australia. These include:

• Public or State Trustees: Many state trustee organisations offer low-cost Will kits tailored to comply with the legal requirements of the respective states.
• Community Legal Centres: Some community legal centres offer free Will kits or free Will drafting services. You can check with local providers to see if such services are available in your area.

While these kits are suitable for many people, those with more complex estates or specific concerns may still benefit from consulting with a legal professional.

Pros and Cons of Free Will Kits

What are the pros of using a free Will kit?

Using a free Will kit can offer several advantages, particularly for individuals with straightforward estate planning needs. There are several key pros:

• Free or low cost: Free Will kits eliminate the need for upfront legal fees, making them an affordable option for drafting a Will.
• Easily available: Many free Will kits are available online and can be downloaded or requested easily, allowing anyone to create a Will without the need for an appointment or professional assistance.
• User friendly: Free Will kits typically come with clear instructions and templates, making it simple for individuals to fill out their details and specify their wishes.
• Confidential: Using a free Will kit allows you to draft your Will in the privacy of your own home without disclosing personal details to a third party.
• Convenient: You can complete the Will at your own pace and at a time that suits you without needing to schedule and attend meetings with a lawyer.
• Basic protection: Having a Will, even one created from a free kit, provides some protection and ensures that your basic wishes are documented and can be followed.

What are the cons of using a free Will kit?

Using a free Will kit can benefit many people, but there are also some potential drawbacks to consider. There are several key cons:

• Not suitable for complex estates: Free Will kits are generally designed for straightforward situations. They may not adequately address more complex scenarios involving significant assets, business interests, multiple properties or blended families.
• Limited customisation: These kits often provide standardised templates that may not allow extensive customisation or specific instructions tailored to unique circumstances.
• Risk of non-compliance: If the Will is not completed, signed, and witnessed according to the specific legal requirements, it may be invalid. This risk is higher when individuals use a kit without legal guidance.
• Potential for errors: Without legal expertise or the option to ask questions of a qualified lawyer, individuals might make mistakes in the language or structure of the Will, which can lead to misunderstandings, disputes or invalid provisions.
• Overlooking important details: People using a free Will kit might overlook critical aspects of estate planning, such as tax implications, trust provisions for minors, or contingencies for simultaneous deaths.
• No professional guidance: Free Will kits do not provide personalised legal advice. This absence can be problematic if your situation requires specific legal interpretations or if you have questions about particular provisions.
• No ongoing support: Unlike working with a lawyer, using a kit means you won’t have access to ongoing support or advice as your circumstances change.
• Higher risk of contests: Wills made without legal assistance are more susceptible to being contested, particularly if there are ambiguities, errors, or perceived unfairness in the distribution of assets.
• Family disputes: Without the clarity and legal rigour of a professionally drafted Will, there is a higher potential for family disputes over the interpretation of the provisions in the Will.

Overall, while free Will kits offer accessibility and convenience, they come with limitations that might necessitate professional legal advice to ensure your Will is comprehensive, accurate, and legally sound.

Limitations of Free Will Kits

Can I use a free Will kit to appoint a guardian for my children?

Yes. You can use a free Will kit to appoint a guardian for your minor children. Appointing a guardian in your Will is a crucial step in ensuring that your children are cared for by someone you trust if you pass away while they are still minors.

Select someone who is capable, willing, and suitable to take on the responsibility of raising your children. Consider their values, parenting style, relationship with your children, and their ability to provide a stable and loving environment. Have a conversation with the person you intend to appoint as a guardian to ensure they are willing to accept the responsibility.

Clearly and specifically state your wishes in the Will. Include the full name and relationship of the appointed guardian to your children. It’s advisable to include an alternate guardian in case the primary guardian cannot fulfil the role.

Can free Will kits handle complex situations like blended families?

Free Will kits can provide a basic framework for drafting a Will, but they often fall short when dealing with complex situations such as blended families. There are a number of challenges and considerations to consider when using a free Will kit in such scenarios:

• Multiple beneficiaries: Blended families often involve multiple beneficiaries, including children from previous marriages, current spouses and possibly step-children. Allocating assets fairly and clearly in such situations can be complex.
• Potential conflicts: The risk of disputes or conflicts among beneficiaries may be higher in blended families, and free Will kits may not provide the nuanced language needed to mitigate these issues.
• Detailed provisions: Free Will kits typically offer standard templates that may not allow for detailed provisions or specific instructions that are often necessary for blended families. Customising these provisions to ensure clarity and fairness can be challenging without legal expertise.
• State/Territory laws: Legal requirements and the interpretation of Wills can vary significantly between jurisdictions. Ensuring compliance with specific State or Territory laws is critical.
• Tax implications: Blended families may face specific tax considerations that need careful planning. Free Will kits generally do not provide guidance on managing these tax implications effectively.
• Establishing trusts: In blended families, it may be beneficial to set up trusts to manage and protect assets for minor children or to ensure that a surviving spouse is provided while preserving assets for biological children.
• Guardianships: Appointing guardians for minor children can be more complicated in blended families, especially if there are disputes or if biological parents are still involved.

Given these challenges, it is often advisable to seek legal assistance when dealing with complex family situations. A lawyer can provide tailored advice, a customised solution, mitigate conflicts and draft a Will that addresses your specific needs.

How do free Will kits handle superannuation death benefits?

Free Will kits typically provide a basic framework for creating a Last Will & Testament, but they may not adequately address the complexities of handling superannuation death benefits.

Superannuation death benefits are funds held in a superannuation account that are paid out to beneficiaries upon the death of the account holder. The distribution of death benefits depends on various factors such as the type of superannuation account, the nominated beneficiaries, and any binding death benefit nominations.

• Superannuation funds have specific rules and requirements governing the distribution of death benefits, including who can be nominated as beneficiaries and how benefits can be paid out.
• Superannuation fund members can make binding death benefit nominations, specifying who will receive their superannuation death benefits upon their death. These nominations are legally binding and must be followed by the superannuation trustee.
• Superannuation death benefits can have tax implications for the estate and the beneficiaries. Depending on various factors, such as the relationship between the deceased and the beneficiary, the age of the beneficiary, and whether the benefit is paid as a lump sum or income stream, different tax treatments may apply.

Free Will kits may not address these legal requirements comprehensively, potentially leading to errors or disputes in the distribution of superannuation death benefits. It is advisable to seek legal advice, especially if you have significant superannuation assets.

Do free Will kits cover Power of Attorney or Advanced Care Directives?

Free Will kits do not include provisions for Powers of Attorney, Enduring Guardianships or Advanced Care Directives. These are separate legal documents that address different aspects of estate planning and end-of-life decision-making.

• General Power of Attorney (POA): Grants broad powers to the appointed person to act on your behalf in financial and legal matters. It is typically valid until you revoke it or become incapacitated.
• Enduring Power of Attorney (EPOA): Similar to a General Power of Attorney but remains valid even if you lose mental capacity.
• Enduring Guardianship (EG): Allows someone to make medical decisions on your behalf if you are unable to do so.
• Advanced Care Directives (ACD): Outlines your preferences for medical treatment and care if you cannot communicate your wishes due to illness or incapacity. It may include instructions about life-sustaining treatment, palliative care, and organ donation.

Given the importance of these documents it is advisable to seek legal advice from a lawyer who specialises in estate planning. They can help you understand the options available, draft the necessary documents according to your wishes and legal requirements, and ensure that your estate plan is comprehensive and legally valid.

Other Will Writing Options

When is it better to consult an estate lawyer rather than use a free Will kit?

Consulting an estate lawyer is advisable in several situations where the complexity of your estate or specific legal concerns require personalised attention and expertise. While free Will kits offer a convenient and cost-effective way to create a basic Will, there are many scenarios when it’s better to consult an estate lawyer:

• Blended families: If you have a blended family with children from previous marriages, step-children, or other complex family dynamics, an estate lawyer can help ensure your wishes are clearly articulated and legally enforceable.
• Disinherited heirs: This can lead to disputes and legal challenges if you intend to disinherit certain family members. A lawyer can help you navigate these complexities and ensure your intentions are properly documented.
• Significant assets: If you have substantial wealth, valuable assets, or business interests, an estate lawyer can provide guidance on asset protection, tax planning, and business succession planning.
• International assets: If you own property or assets in multiple countries, estate planning can involve complex legal issues related to international law, taxation, and inheritance laws.
• Dependents with special needs: If you have dependents with disabilities or special needs, an estate lawyer can help you establish trusts and provide for their long-term care and financial security without jeopardising government benefits.
• Tax implications: Estate lawyers can help you minimise estate taxes, capital gains taxes, and other tax liabilities through strategic planning, such as setting up trusts, gifting strategies, and charitable giving.
• Legal advice: Estate lawyers offer personalised legal advice tailored to your individual circumstances and goals. They can explain complex legal concepts, ensure compliance with state laws, and address any concerns or questions you may have.
• Dispute prevention: An estate lawyer can anticipate potential disputes among beneficiaries and help you draft your Will and estate plan in a way that minimises the risk of litigation and family conflict.
• Medical and financial decisions: If you need to establish Powers of Attorney, Enduring Guardianships or Advanced Care Directives to appoint someone to make healthcare or financial decisions on your behalf, an estate lawyer can ensure that these documents are properly drafted and legally valid.

What other options are there for writing my Will?

We’ve covered free Will kits and using an estate lawyer to write your Will. The other option is a reasonably priced online Will kit, such as the one offered by Legal123.

The Legal123 online Will kit has seven advantages over a free Will kit:

1. The online form makes writing a Will easy by guiding you through a series of simple questions.
2. There are online video instructions that show you exactly how to complete the online form, sign it, and have it witnessed.
3. If you have questions during the process, you can email or call Legal123.
4. You can save your inputs and continue later at any stage, which is useful if you are missing any information like an address.
5. The online Will kit includes a Codicil form for making simple changes to your Will.
6. Buy once, and use the online Will kit again and again.
7. No hidden, ongoing or Executor fees.

When choosing an option for writing your Will, consider factors such as the complexity of your estate, the need for legal advice, and your peace of mind. In the end, it’s crucial to ensure that your Will is legally valid, accurately reflects your wishes, and effectively protects your assets and beneficiaries.

About the Author: David Evans

David Evans (BA Hons, LLB) is an Australian lawyer specializing in Wills and Estates at Legal123 Pty Ltd. David has over 11 years of experience drafting Wills and navigating complex estate planning situations. Click for more information on David Evan’s personalised Will writing service.

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