How to Write a Will in Australia – the Legal123 guide. Everything you need to know: who, what, when, where, how and why.
It is important for everyone to have a Will – even if you don’t have property, money or assets. It can save your family and friends money, time, arguments and also help them to understand what you want to do with your remains after you have passed away. It’s already a difficult time for them, so make it easy on them.
And don’t leave it until the last minute – it is difficult to think about your own mortality and the possibility of dying. So do it early, and do it now!
This guide is divided into 2 sections: a Quick Guide with the top 5 FAQs and then the Complete Guide with answers to every question you might have about How to Write a Will.
Quick Guide – Top 5 FAQs
Click on the question to reveal the answer.
Who needs to make a Will and why?
- Almost every adult Australian should have a Will. Here are some stages-in-life when you should consider making or amending your Will:
- Just married or re-married (marriage revokes any previous Will)
- Moving in together or entering into a defacto (i.e. long term) relationship
- Getting separated or divorced (divorce does not automatically revoke a Will)
- Buying a house/apartment/land or other significant asset
- Buying or starting a business, and
- Turning 18 years old
There are several important reasons why you may need a Will:
- To protect your assets (your “Estate”)
- To provide for the future of your family and loved ones
- To decide who will receive your assets (your “Beneficiaries”)
- To appoint someone to look after and distribute your assets (your “Executor”)
- To reduce the fees and taxes which result from dying without a Will (or “Intestate”)
- To reduce the costs and stress to your family members of dying without a Will, and
- Without a Will, legislation determines how your assets are distributed
What happens if I die without a Will?
- In legal terminology, dying without a valid Will in place is called dying “intestate”. The legal procedures for dealing with your assets become more complicated, time-consuming and costly – and may cause more distress and hardship to your family.
If you die without a Will, the law will decide how your assets are divided and who will distribute the assets (called “the Adminstrator”). The legislation governing estates of persons who die without a Will may not match what you want to happen to your assets – meaning your assets are distributed against your wishes.
Your assets will usually pass to your closest family, for example, your surviving spouse or partner, and to your children. If you do not have a spouse or children, your Estate usually would then go to your next closest relatives: your parents, followed by your siblings. In the absence of any living relatives, or if they cannot be located, your Estate will pass on to the Government.
Often a Government Trustee is appointed to distribute your assets and will charge a large fee to do so. In addition, your Estate may be subject to additional taxes which could have been avoided by having a valid Will in place.
Can I change my Will after I have signed it?
- Yes, you can change your Will at any time and as often as you wish after it is signed. The best and “cleanest” way to change it is to make a new Will. However, if the changes are minor, for example adding a gift or changing Executors, instead of writing a new Will you could use what is called a Codicil. Be sure to only use a Codicil if the changes are minor since they can cause complications in some States.
Can a Beneficiary of my Will be Executor?
- A Beneficiary is someone who benefits from your Will. For example, your children or siblings. Your Executor is someone you trust to oversee the administration of the Will and carry out your wishes after you die. You specify what the Executor is to do and the extent of their powers in your Will. These responsibilities may include:
- Locating the Will
- Organizing for your burial or cremation
- Applying for “Probate” (i.e. formal authority from the court to execute the Will)
- Collecting all debts owing to you and paying all debts you owe
- Identifying and safeguarding all property and assets that form part of the Estate
- Obtaining valuations of the Estate (e.g. property, business interests, personal effects)
- Notifying all Beneficiaries named in the Will
- Distributing your assets in accordance with your Will, and
- Organising for all income tax returns to be completed and tax paid
Being an Executor is a very responsible position so you want to ensure you choose someone you can rely on to make decisions, protect your assets and manage your Estate in best manner possible. And lastly, yes, your Executor can be a Beneficiary of your Will.
What is the difference between a Living Will and a Will?
- A Living Will sets out the medical care you wish to receive in the event you lose your mental capacity or become incapacitated. It generally covers situations involving life support and medical intervention to prolong your life.
Living Wills in Australia are not common practice, yet. There have been court cases over-turning them and for that reason they are a little controversial. However, they are almost becoming standard in North America and no doubt this will influence what happens in Australia in the future.
Why Do I Need a Will?
A Will is the only way to be certain that your assets will be distributed the way you want after you die. This helps avoid potential arguments between your family members over your personal assets. A Will is particularly important because it’s one of the few legal documents where lawyers and courts won’t be able to ask you to explain or clarify your intentions when it comes to be used! It’s a definitive statement of your intentions when it comes to your wishes for both your assets as well as your burial.
If you die without a Will (known formally as “dying intestate”), the court decides how your estate and assets are to be distributed and this is usually done according to a strict legal formula. The court appoints a trustee executor who will distribute your assets according to this formula, even though this may not be how you would have chosen to give away or divide your assets. For example, you may wish to give gifts to particular friends, children, grandchildren or relatives. These wishes are not carried out by the government trustee if you do not have a Will which specifies this.
In addition, if you die intestate, there are additional fees and taxes charged to your estate which you would not necessarily have if you die with a Will in place. This means your heirs wind up receiving less and more of your hard earned money goes unnecessarily to fees and taxes which may otherwise be avoided.
Having a Will is also important as it allows you to appoint an executor that you know and trust to make sure that they can help distribute your assets and arrange your affairs after you die.
When should I write a Will?
It’s usually best to write a Will as early as possible, simply because you never know when the worst might happen. You can always update a Will later on: courts will work using your latest revision when the time comes, provided you have kept it clearly marked and identifiable as your latest version.
Wills are a significant and essential part of your financial planning and should not be something that is left until the last minute nor left unfinished. Templates for Wills are inexpensive and can be bought online, so you can complete them in the comfort of your home.
Is it complicated to write a Will?
No. A Will is one of the easiest and least daunting of all personal legal documents to write – although some people may find the process emotional. As long as you have something written that indicates your wishes, a court will try to uphold it, no matter how it is written. In addition, you can download templates from the Internet and write a Will easily from home – there is no need to go to a lawyer.
And here is a link to the Legal123 Easy Australian Will Kit.
Should I use a “free” Will?
Using a “free” Will is not usually a good idea. There are a number of reasons why you should think twice about using these services. For example, these Wills may not comply with all State and Territory legislation. If there is a problem with the Will and it is found to be invalid then your wishes may not be carried out. There’s also a risk that due to any complication in your Will, it could take longer for your heirs to receive your assets or gifts and there may be legal expenses taken out of their share.
Another problem is that many “free” Wills require you to nominate the supplier’s company or affiliate as a trustee or executor to your Will. When you die, they carry out this role but they charge fees and often take a percentage of your assets as well. This can work out to be as much as 5% of your assets. This means the “free” Will can prove quite costly; it’s just that your heirs pay the price and your hard earned money and estate pays the fees.
How Do I Write a Will?
The easiest way to start is to buy a Will kit online and to write your Will from home. You can find the Legal123 Easy Australian Will Kit here.
You should read over the kit in full before you start so you know what and who you need to think about.
Next, you should start writing a series of lists:
- Assets you have
- Gifts you want to give away
- People you want to include, and
- Who to choose as your executors to distribute your estate.
Don’t rush this process – you may want to write the lists over a period of time in case you think of something or somebody else to add to the lists.
If you have a partner or spouse and intend to leave a particular gift to somebody else in your Will, you should discuss it with your partner or spouse. This reduces the chance that they get rid of the gift by not knowing, which can cause confusion when it is time to distribute gifts and assets under your Will.
What assets do I need to include?
You should gather together a complete list of all your assets, this includes:
- Physical assets such as a house, cars or jewellery
- Financial assets such as shares or bank savings, and
- Heirlooms or possessions with sentimental value.
You should also make a note of your liabilities such as outstanding mortgages or loans. When you leave a specific asset, you may need to decide if any associated liabilities are to be included as part of the gift or whether it is to be given free of any loan or taxes.
Bear in mind that the usual process for distribution of assets in a Will is that first, specific named gifts go to specific named recipients. The executors then work out the total value of everything else you own, minus any liabilities and taxes. What’s left over is called your “residuary estate”, which is divided up in accordance with your Will.
Who is my Executor?
This is the person (or people) you have chosen to be in charge of looking after the distribution of your assets. This person is called an executor and should be someone who is over the age of 18, someone you trust and someone who is able to make decisions on your behalf if necessary.
You should choose at least two executors for your Will as by the time you die, one may not be available or willing to act as your executor. Naming two executors also helps relieve some of the workload so they can both look after your assets together.
Another important factor to consider is the possibility that you become incapacitated and unable to make decisions for yourself. You may wish to consider signing an Enduring Power of Attorney, which gives the right to a person you nominate and trust to make decisions about your financial and, in some cases, medical affairs in the event you become incapacitated.
What decisions might an Executor have to make?
If a specific gift in a Will no longer exists – for example, if you left somebody a painting but sold it before you died or shares you had gifted under your Will were no longer available – then your instructions to pass on the gift are no longer possible. This process is known as ademption.
When this happens an executor may choose to distribute another of your assets in place of the specified gift. Usually this will be an item with the same or lesser value. The powers of the executor in this situation may depend on the wording of your Will.
Can my Executor be a Beneficiary? Do I have to pay the Executor?
Yes, this is perfectly acceptable and a good idea. An executor should be a person whom you trust a great deal both to carry out your wishes and to make decisions where necessary. Executors have a legal duty to always deal with your Will in the best interests of the beneficiaries and to protect the assets of the estate. If your executor is a beneficiary, they have a greater interest in ensuring your estate is looked after and distributed properly.
But bear in mind that an executor doesn’t have to be a beneficiary. For example, you may decide to have your solicitor or family friend act as your executor.
The main difference and consideration you need to make, is if your executor does not receive anything under the terms of your Will, they can claim a fee for their time and costs dealing with the assets and administration of your Will. This money then comes out of the estate and reduces what your beneficiaries receive. If an executor is a beneficiary, they usually can’t claim a fee, even if you’ve only left them a small amount.
How Do I Sign My Will Legally?
You must sign your Will yourself in the presence of two witnesses; they must be at least 18 years old and cannot be beneficiaries. The witnesses do not need to read your Will or even know what it contains. Instead they must simply watch to see that it was, in fact, you who signed the Will. You must sign your full signature to each page of your Will and then sign and date the last page.
The witnesses then need to sign to say they have witnessed you signing, and then date and print their names and addresses on the last page of the Will. You should all use the same pen as otherwise it may appear as if you did not all sign at the same time, which could lead to legal disputes after you die.
What do I do with my Will after I have signed it and had it witnessed?
You should let your executors know that they have been chosen as your executors. Normally you should check to ensure they are happy to do this before you make a Will, but you should still confirm it afterwards. You should also either give them a copy of your Will or make sure they know where to find it. If your Will cannot be found at the time of your death then your assets may not be distributed according to your wishes and you may be considered “intestate”.
You should also make sure that if you have signed an Enduring Power of Attorney, the person concerned has a copy of that document or knows where to find it too. You should keep it with your Will.
Where should I keep my Will?
You must keep your Will in a secure place. There is no legal requirement or need to give it to a lawyer or anyone official to hold onto, though some people find this a useful way of making sure it is secure. Neither do you need to register it. Normally it makes sense to keep your Will along with your other important legal documents such as your property titles, banking and financial affairs in a safe or other locked area.
Making Changes to Your Will
A Codicil is a separate document that is used to make minor changes to an existing Will. This could include changing an executor or beneficiary or adding a gift. It is very important that you keep your Codicils with your Will. This is because when you make a Codicil, there are no changes made directly on the Will itself and without the Codicil there is no other legal evidence of the change.
As a general rule you shouldn’t make more than two or three Codicils. If you need to make further changes you should write a completely new Will. This avoids the danger that your Codicils may contradict each other or cause confusion about your intentions. If you write a new Will, any previous Wills become invalid. This is why it is so important that your Will is dated and witnessed.
You can find more information about the Legal123 Codicil here.
What Happens After I Die?
Note: This section is based on the rules in New South Wales. Variations in other Australian States and Territories are referenced in the Legal123 Easy Australian Will Kit here.
After you die, your executors locate your Will and arrange for your funeral, if your family has not already done so. At this point your executors notify beneficiaries of your death, if they have not yet all been notified. For this reason, it is important that you should ensure you tell your family and executor (or executors) where your Will is stored, so it can be easily located.
What is probate?
Your executor needs to obtain what is called a “grant of probate” for the Will. This is a court ruling that confirms the Will is valid and that the executor has legal authority to carry out your requests.
To do this, the executor must first publish an advertisement in a local newspaper. This advertisement has a set wording and explains that the executor is seeking probate. You can get the necessary forms using the links provided in the Legal123 Easy Australian Will Kit.
The purpose of the advertisement is to make sure any of your creditors know about your death and can claim the debts. It is very important the executor follows this requirement as otherwise he or she could be personally liable for their debts if the creditor doesn’t find out about your death until after your assets have been distributed to your beneficiaries.
14 days after the advertisement is first published, the executor may make an application to the Supreme Court for a grant of probate. They must present evidence of a valid Will; details of the relevant assets and liabilities; the certificate of death; and the completed forms from the Supreme Court’s Website. It then takes six days to receive the grant of probate. If the executor doesn’t apply for the grant of probate within six months of your death, they will need to also provide and file an explanation of why they took so long to apply for probate.
What happens after probate?
Once probate has been granted, the executor can start the process of administering your Will. They start by paying any liabilities on your estate and collecting any debts you were owed. This process may involve selling off assets to raise cash for any liabilities owed.
Executors must make sure there is no mix-up between the money belonging to the estate and any money they personally receive under your Will. For this reason, they normally operate a separate account for the money belonging to the estate.
Once this is completed, the executor files income tax forms using the remaining total to find out how much tax is due.
How are your assets distributed?
The executor first distributes any specific gifts you have listed in your Will. As previously noted, they may choose to substitute a gift if a specified gift is unavailable, but don’t have to do so.
Once all the specific gifts have been distributed, the executor obtains a valuation on any remaining assets before selling any off. Normally any beneficiaries or family members can buy these assets but must pay the estimated value.
All money from these sales goes into a “pot” known as the residual estate. The executor then pays the tax and deducts any other fees, then divides up the remaining money in accordance with your Will.
Does my Executor need a lawyer to assist in administering my Will?
No, your executor does not need to be a lawyer, nor do they need to hire one. But they should be a responsible person that you trust and able to make decisions for the benefit of your estate and beneficiaries. You should ask someone ahead of time if they are happy to be an executor as this can be a very big task. In the creation, administration and distribution of your Will, there is no requirement for a lawyer to be involved in any way or at any time.
How long does the whole process take?
This depends on a number of factors such as how many liabilities and assets you have, where the beneficiaries are and whether anyone challenges your Will at probate.
In a typical case where you do not have many debts, the Will is not contested and none of your assets are particularly complicated or unusual, it normally takes between three and six months between your death and the last of the monies being paid out. Most of this time is taken up by the valuation and sale of the assets.
Can my Will be contested?
Yes, although there is a specific time limit to do so in each State or Territory. A Will can usually be contested by a spouse, defacto partner, child or parent – and in some circumstances it can be contested by a grandchild or anyone else who feels they may have a rightful claim.
A Will can usually only be contested when somebody argues that you had an obligation to provide for them in your Will. A person can contest your Will after probate has been granted but cannot do so once your assets have been distributed.
What if I die without a Will?
If you die without a Will, the State Trustee will be appointed to distribute your assets. This is a government appointed official who charges a substantial fee for this work.
The State Trustee must distribute your assets following a strict formula set down in law. In many cases this can simply mean all your assets will be given to your first closest family member. This may not necessarily be how you would want your belongings to be distributed. Your friends and other family members receive nothing and it can greatly increase the emotional stress caused to your loved ones.