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 make 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 easier.
And don’t leave it until the last minute – it is difficult to think about your own mortality and the possibility of dying. And you never know what may happen, so do it early, and do it now! It can always be updated at a later date.
Questions about Wills answered in this guide
Click on any of the questions below to jump to that section of this guide.
- The Basics
- Types of Will
- Writing Your Will
- Choosing an Executor
- Signing Your Will
- Making Changes
- After You Die
If after reading this guide you still have a question, get in touch as we’d love to keep adding your questions to this comprehensive guide.
What is a Will?
A Will or Last Testament is a legal document, formally declaring how your assets are to be distributed after your death. It gives you the opportunity to provide for your family, dependents and friends after you die – avoiding confusion, delay, fees and taxes.
Why do I need a Will?
A formal document outlining your wishes for your estate assets 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. It 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 die intestate.
In addition, there are additional fees and taxes charged to your estate which you would not necessarily have if you die with a document 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 your bequest wishes down as early as possible, simply because you never know when the worst might happen. 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
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.
What 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 court will determine who will distribute your assets. It may choose to appoint the State Trustee, who charges a substantial fee for this work. Or alternatively, your spouse, a family member or close friend can volunteer and apply to the court to administer and distribute your estate. However, in this latter case the person must first be approved by the court.
If you have passed away leaving children who are minors (under 18), the court may also require a third party administration bond to be arranged. This guarantees any losses if the executor of the estate does not ‘properly administer’ the estate. The bond can prove quite expensive and is usually bought through an insurance company.
The chosen executor of your estate must then establish all eligible next of kin and provide certificates of evidence. This may take time and can be expensive. Once completed, an application for distribution of your assets is then prepared and lodged with the court.
Your assets must be distributed following a strict formula set down in law, which (unfortunately) is different in each Australian State and Territory. But generally:
- All your assets are to be given to your first closest family member, for example, your surviving spouse, partner or 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 may pass on to the Government.
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.
Types of Will
What is a Mirror Will?
Mirror Wills are identical Wills that leave assets to the same beneficiaries. For example, a husband and wife will often have Mirror bequest documents because they have the same wishes for dividing their assets when they die – leave everything to the survivor of them and then to their children.
The only difference in their bequests would be the name of the Testator (the person making the Will) and possibly the witnesses, who sign at the same time as you sign.
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 are also called Advanced Care Directives or Anticipatory Directions in New South Wales. There are equivalent forms and procedures in most Australian States that enable you to make the same appointment.
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. It is important to note that the law regarding Living Wills varies in different States in Australia so legal advice should be taken so you completely understand the outcome should you decide to write a Living Will.
Do I need a Will if I have a Power of Attorney?
Yes. A Will and a Power of Attorney are two very different documents used for two different purposes. The only similarity is that they both involve appointing one or more people to act on your behalf.
In the case of a Will you appoint an Executor (or multiple Executors) to carry out your wishes after you die. In the case of a Power of Attorney (or Lasting Power of Attorney) you appoint an Attorney (or multiple Attorneys) to carry out your wishes or make decisions for you while you are alive. When you die the Power of Attorney is no longer valid and your Will immediately comes into force.
Do I need a special Will if I’m in a same-sex relationship?
No. There are no limitations on same-sex couples writing a Will that leaves part or all of their estate to their partner. You can leave your estate to anyone – and this is irrespective of your relationship status or type.
Writing Your Will
Is it complicated to write a Will?
No. It 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 your Will easily from home – there is no need to go to a lawyer unless you have a more complex situation.
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 documents may not comply with all State and Territory legislation in Australia, may be an overseas document or may not be legally valid. If there is a problem 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, 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. 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 to be 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 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 as part of your bequest, 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 which form part of your estate.
What assets do I need to include in my Will?
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 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 specifications.
Should I include my superannuation or life insurance policies in my Will?
No. You do not normally need to specify bequeaths in for your superannuation or life insurance policies.
Some superannuation funds have discretion as to whom they will distribute benefits to on your death, such as to your spouse, children, etc. but without reference to your Will. Other superannuation funds permit you to choose a beneficiary through a “binding death benefit nomination” which allows you to indicate your preferred beneficiary. In many instances this “binding death benefit nomination” lapses after 3 years, so it is best to check with your superannuation fund regarding their individual fund rules.
Life insurance companies require you to nominate a beneficiary at the time of taking out your life insurance policy. Upon notification of your death, your life insurance policy benefits are paid directly to your nominated beneficiary without reference to your Will. Therefore, when you renew your policy be sure to check the beneficiary details.
Choosing an Executor
What is an 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. Their responsibilities may include:
- Locating the Will
- Organizing for your burial or cremation
- Applying for “Probate” (i.e. formal authority from the court to execute and distribute your estate)
- 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
- Distributing your assets, and
- Organising for all income tax returns to be completed and tax paid
You should choose at least two executors 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 you have gifted as a bequeath no longer exists – for example, if you left somebody a painting but sold it before you died or shares you had gifted 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. Often this may be an item with the same or lesser value. The powers of the executor in this situation may depend on the specific wording in your Will.
Can my Executor be a Beneficiary?
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 estate 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.
Should I pay my Executor?
The main difference and consideration you need to make, is if your executor does not receive any gifts or bequeaths under your Will, they can claim a fee for their time and costs dealing with the assets and administration of your estate. This money then comes out of the estate and reduces the amount 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 or gift.
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 estate, there is no requirement for a lawyer to be involved in any way or at any time.
Signing Your Will
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 the document or even know what it contains. Instead they must simply watch to see that it was you who signed the document. You must sign your full signature to each page 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. 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 after I have signed my Will?
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 start the process, but you should still confirm and notify them to confirm afterwards. You should also either give them a copy 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 should store your original signed Will in a safe and secure place – and let your Executors know where to find it. 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 it along with your other important legal documents such as your property titles, banking and financial affairs in a safe or other locked area.
Do I need to lodge or register my Will?
No, Wills and Codicils do not need to be lodged or registered with any authority – just kept in a safe place. After you have written your Will, it’s a good idea to tell your Executor(s) and family members where you have stored it (and any Codicils) for safekeeping.
Can I change my Will after I have signed it?
Yes, you can change it at any time and as often as you wish after you have signed it. The best and “cleanest” way to make any changes it is to start again with a new document. However, if the changes are minor, for example adding a gift or changing Executors, instead of writing a new one you can use what is called a Codicil to amend it.
A Codicil is a separate document that is used to make minor changes to an existing Will. It is very important that you attach your Codicils to your original document – and keep them in a safe place. 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 versions become invalid. This is why it is so important that you date and witness the new version.
You can find more information about the Legal123 Codicil here.
Can I change my Will by handwriting changes and initialing?
No, you should never change your Will by handwriting changes, making notes or striking out any gifts or donations. You should never write on your Will – it will invalidate the document!
The procedure for making additions, substitutions, revisions, etc. is to make a Codicil. A Codicil must be typed, signed, dated and witnessed in accordance with the same formalities required to make a Will. If you fail to follow this, the changes you intend to make may not be effective and you increase the likelihood of your Will being contested or declared invalid.
When do I need to amend my Will?
You should always amend and keep your last testament documents updated when there is a significant change in your circumstances. For example, if:
- You get married, separated or divorced
- You have children and you want to nominate a Guardian
- A nominated Guardian is now not able to look after your children
- You want to add specific gifts or set up a Trust for your children
- You buy a property or a significant asset
- You start a business or buy into a business
- Any of the Executors of your Will die
- A person named in your Will dies or becomes incapacitated
- You change your mind about any of the beneficiaries or gifts
Is my Will still valid if I get married or re-married?
No. In most Australian States, your Will is automatically revoked by marriage. If you made a Will before you got married, it will automatically be revoked when you marry unless it was made with a particular person/marriage contemplated and specifically referred to. So if you marry, it is more than likely you may need to amend your Will.
Is my Will still valid if I get divorced?
Your Will is not automatically revoked by divorce. However, new legislation now means that any references to your former spouse are automatically revoked. For example, any gift made to your former spouse is automatically revoked and if you nominate your former spouse as Executor, that is revoked too. So if you divorce, you will need to amend or write a new one.
After You Die
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 you have stored all your important documents, so they can be easily located after your death.
What is probate?
Your executor needs to obtain what is called a “grant of probate” upon your death. 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 have 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 administration of your wishes. 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. 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 will my assets be distributed?
The executor first distributes any specific gifts you have listed. 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 wishes.
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 (like a carer) 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. A person can contest your Will after probate has been granted but cannot do so once your assets have been distributed.
There is nothing that you can write into your Will which will ever ‘guarantee’ or prevent someone from trying to challenge your bequests after your death. However, being aware of the potential claimants and taking certain steps to make your wishes very clear may help ensure your estate and assets are distributed in accordance with your wishes.
If you are intentionally leaving someone who may have a right to claim out of your Will, or you believe there may be a strong likelihood that someone may contest, writing a letter setting out the details of your decision and the reasons for your decisions and leaving the family member or other person out of any bequest may be sufficient to avoid any dispute. This written confirmation from you provides strong evidence that your decision was made with great thought and understanding and clarifies your wishes.
Can my Will be found invalid?
Your Will could be found to be invalid under certain circumstances. For example:
- No executor is named in your Will
- Your executor has died or is unwilling/unable to act
- You did not sign your Will in front of witnesses
- Your witnesses are beneficiaries (or are related to beneficiaries) named in your Will
- You did not make it clear that you revoked any previous Will
- You wrote your Will while not ‘of sound mind’, or
- You did not update your Will when you got married
We hope you found this guide on how to write a Will helpful.