Writing a Will can make things so much easier at the time of your passing and is so important even if you don’t have money, assets or property. Being prepared in the form of a Will ensure that your wishes can be met. It helps make a difficult time for family and friends a little easier and saving them time, money, and even any arguments about what you want doing with your remains.
While you can never really know that you need it, and even though it’s challenging to think about it’s essential you don’t leave it until the last minute. You never know where life can take you, so do it now because it can always be updated when things change.
The Basics:
What is a Will?
A Will is a legal document that allows you to declare how your assets are then distributed upon your passing.
Why do I need a Will?
The only way to be sure that your wishes for your estate assets are distributed to your liking is through a formal legal document. Being able to avoid your family having potential arguments over your assets after your death can give you peace of mind.
One this is certain, a Will is one of the few legal documents that is a definitive statement where you cannot be asked to explain or clarify why you have distributed your assets as you have done. Dying without a Will means the court decides how your assets and estate distribution is done according to a strict legal formula.
When should I write a Will?
Writing your wishes down in a legal document should be done as early as possible. The reality is you never know when you could pass away, but there are different stages in life when you should consider or amend your Will, such as getting remarried, divorced on buying new assets.
Never leave your Will to the last minute because it is an essential part of your financial planning and your families’ future.
What if I die without a Will?
Legally, passing away without a valid Will is referred to as dying “intestate.” Without a legal document, dealing with your assets is a complicated, costly and time-consuming event that adheres to a strict formula is used to distribute your asset, which is different in each Australian State and Territory; however, as a general rule:
- Your assets will be given your first closest family member, e.g. husband or wife.
- If this isn’t viable because you have no spouse, then your next closest relatives are in line, e.g. You parents or siblings.
- If no living relative or they are unable to be located, the Government may take over your estate.
Types of Will
What is a Mirror Will
Identical Will that leave assets to the same beneficiaries is called Mirror Wills. This is usually a husband and wife who have the exact wishes for dividing their assets, which generally means leaving everything to the survivor of them and then to their children if they have them.
What is the difference between a Living Will and a Will?
There are significant differences between a Living Will and a Will. A Living Will is about the medical care you wish to receive in the event of losing your capacity mentally or becoming incapacitated. This is generally in regards to life support and what intervention should take place to prolong your life.
Is a Will necessary if I need a Power of Attorney?
The short answer is Yes. A Power of Attorney and a Will are two very different documents and for two different purposes. There is only one similarity, which involves the appointment of one or more people who will need to act on your behalf.
With a Will, an Executor or multiple are who act on your behalf after you die. With a Power of Attorney, you appoint someone to make decisions or carry out your wishes while you are still living. A power of attorney no longer has a role once you die, and the Will then comes into play.
Should I have a special Will in a same-sex relationship?
No. Same-sex couples have the same rights as heterosexual couples. Regardless of your relationship, you can leave your estate to whomever you like.
Writing Your Will
Is writing a Will complicated
Writing a Will isn’t complicated; for a legal document, it’s relatively easy to write. It’s more of an emotional process, and as long as you have something written down, it will be upheld in court.
Should I use a “free” Will?
Often a ‘free’ will doesn’t comply with legislation in Australia, so it isn’t ideal; however, if you choose to use one, it’s best to seek a legal professional to go through the completed document make sure everything is covered.
How do I write a Will?
If you decide to write your Will, the easiest way to write it is using an easy to use Australian Will Kit. Before proceeding, be sure to read over all the instructions and know what you wish to include. There is no need to rush the process, and it’s better to take your time.
What assets should be included in my Will?
All your assets should be gathered into a complete list, including your liabilities such as any loans or mortgages. It’s essential to note that you must decide whether the liabilities will be included with them when you leave assets. You do not include any superannuation of life insurance policy in your Will.
Choosing an Executor
What is an Executor?
An executor is a person or people whom you choose to distribute your assets. They must be over 18 years of age, a person who can make decisions for you if need be and that you trust them. If you name two executors, this relieves a bit of the workload.
Some of the decisions that may need to be made include:
- A possession you bequest is no longer available;
- Shares no longer available; and
- An item is sold before you die.
This situation is referred to as ademption, and something can be organised in its place.
Can my Executor be a Beneficiary?
Yes, and it is often a great idea. It should be someone you trust, and if they are a beneficiary, they are likely to more invested in how your estate is distributed and looked after in the event of your passing.
Should I pay my Executor?
An executor who is also a beneficiary cannot claim a fee. However, if they received nothing, they are legally able to claim expenses for their team, which is taken out of beneficiaries money.
Is a lawyer required for my Executor to administer my Will?
No lawyer is required, but as mentioned previously, the Executor needs to be someone you trust and is happy to take on such an enormous task.
Signing Your Will
How is my Will signed Legally?
Two witnesses who aren’t beneficiaries and are 18 years and over must be present during the signing of your Will. There is no requirement for you to disclose any information in the document; they simply need to watch you sign it. The witnesses then sign, date and print their names and address on the final page.
Tip: Use the same pen to avoid legal disputes over inconsistencies.
What next?
- Confirm with executors that they’ve been chosen and
- Give them a copy or ensure they know its location.
If your Will cannot be found after your passing, this means it’s likely your assets won’t be distributed to your wishes.
Where should my Will be kept?
The original Will, once signed, should be kept along with your other essential documents, including any banking, financial and property information. Stored in a locked area such as a safe is ideal.
Should my Will be lodged or Registered?
No. These are no authority with which you need to lodge or register your Will. The only requirement is to keep it somewhere safe.
Making any Changes
Can my Will be changed after I sign it?
Your Will can be changed by you at any time and as often as you like. The most effective way to do this is by starting with a new document. If the changes are relatively minor, you can use a Codicil for amending it – a separate document used when making minor changes to your Will. This needs to be attached to your existing Will; otherwise, it could be overlooked.
Your Will should never be changed by handwriting, making notes or striking out any sections. Writing on your Will invalidates it. The Codicil must be typed, signed, dated and witnessed.
What happens when I die?
Based on NSW rules, your Executor will locate your Will and arrange for your funeral, unless the family already have. The Executors notify any beneficiaries about your passing if they aren’t already aware.
We hope you have found great value in how to write your Will kit and can start doing yours with confidence.
For more information around writing a will in Australia, visit this legal blog around family law in Australia.
