Making a will: What's involved?

According to ASIC, approximately half of all Australians die without a will. Do you have your affairs in order? We take a look at what making a will could involve.

When someone passes away without writing a will, an administrator is appointed by the court who will use the deceased’s assets to pay outstanding taxes and bills and determine the distribution of the rest based on an established formula, not necessarily how the deceased would have intended. If the person doesn’t have any living relatives, the assets are given to the state government.

While it may be a morbid subject that many people would rather avoid, writing a will is important as it could help ensure your assets are distributed as you would like. To make it a little easier for you, we look at how the process might work. Everyone’s situation is different, however, so when it comes to writing a will, it could be a wise idea to consult a suitably qualified professional, as this is general advice and could differ from your needs.

What is typically included in a will?

To put it simply, a will is the legal document that sets out how a person’s assets are to be distributed upon their death. It will contain instructions for the division and disposal of their assets. It can also cover some lifestyle requests such as nominating guardians for children as well as funeral and burial wishes. A will can also determine the timing of inheritances by use of trust structures as well as donations the person would like to make to charities.

When writing a will, a person is required to appoint at least one executor who will ensure their wishes are enacted. It could be worth having a serious think about who to nominate as an executor. Some considerations include their age, their relationship with your family and the complexity of your situation.

What typically isn’t covered in a will?

There are a number of assets that a person is likely to have that are not automatically dealt with through a will. Some of these assets can represent a significant chunk of a person’s total wealth.

  • Some jointly held assets: If a person holds assets jointly with someone else (for example, a joint bank account, a joint home, a jointly held car), those assets will typically pass automatically to the co-owner rather than be distributed through a will.
  • Superannuation proceeds: Superannuation is not automatically part of an estate. This can be especially significant if a person holds life insurance through their superannuation fund. Generally, the payout of superannuation and any associated life insurance is at the discretion of the trustee of the superannuation fund. It is possible to make a binding nomination, however these can be restrictive. It could be a wise idea to discuss this issue with your superannuation fund.
  • Life insurance policy proceeds: Individual life insurance policies also do not automatically go through a will. A person can, however, nominate their estate as the beneficiary in order to have the proceeds distributed via the will.
  • Interest that a person has as owner or beneficiary of a trust: Generally, the relevant trust deed for any trust that a person may be a member of typically outlines how ownership will be transferred.

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Can someone write their own will?

While it is possible that using a DIY will kit could be a less expensive option than having a will drafted by a solicitor, it is wise to keep in mind that a will is a legal document. If a will is not written properly, and it is not executed properly, it may be invalid. Because of this, it is often advisable to seek professional assistance.

“If you use an online will kit, get it checked by a solicitor or Public Trustee,” the Australian government’s Moneysmart.com.au website states, which adds that a solicitor or Public Trustee are likely to charge you for doing so.

“They can make sure it’s been done properly. If your will isn’t done properly, it will be invalid.”

According to the Public Trustee, anyone can prepare a will if they are over 18-years old and deemed to be of sound mind. A will must be:

  • in writing
  • signed by the owner of the will and be witnessed by two people (not an heir or spouse).

However, there could be different rules in different areas of Australia when it comes to wills, according to the Australian government’s australia.gov.au information portal. The site recommends that each person check the rules that apply before starting any work on a will.

If you choose to write your own will, it could generally be a good idea to:

  1. Do your research – example wills are available online and you can read the samples to get an understanding of how you may like to structure your own.
  2. Find a suitable DIY kit – there are many available for sale online.
  3. Understand your state’s specific requirements – visit your state’s Public Trustee’s website (listed below) to understand what is needed and what services may be available to you, including exemptions from charges. For example, some states automatically revoke your will when you get married or divorced.
  4. Make it clear – ensure everything you write provides explicit instructions and clearly identifies heirs, including details such as their address, birth date and relationship to you. If you choose to exclude someone from your will, such as an estranged relative, make it clear this was intentional to avoid future legal challenges. The clearer your explanations within your will, the less likely it will be misinterpreted or considered invalid.
  5. Include back up recipients – this is important in case your heirs are unable or unwilling to accept their inheritance, for example if they pass away before you or cannot be located.
  6. File it carefully – tell those closest to you where they can find your will to save everyone tearing through your house trying to locate it. It is also a good idea to keep a list of the legal documents you have and where they can be found.
  7. Keep updating it – once you have finished writing your will, don’t cast it aside and forget about it. Ensure you update it as your circumstances change.

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Who can help write a will?

It is often a good idea to speak with a solicitor or private trustee to learn how to write a will that is legally binding as if your will isn’t signed and witnessed correctly, it will not be considered valid. There are also community legal centres around the country that may be able to help. Your state’s Public Trustee may not charge to prepare or update your will as long as they are made the executor of your will. Check your local Public Trustee to understand your requirements.

Source: moneysmart.gov.au


 


About Shay Waraker

Shay WarakerWith a Bachelor of Journalism under her belt, Shay has lived and breathed content for almost a decade, including public relations and copywriting both in Australia and the UK. Today, she manages a team responsible for preparing engaging finance content for Canstar including video, our series of guides and securing contributed articles from external experts, as well as looking for the next content opportunity to help empower people to take control of their money. Shay is acknowledged by friends and family as being on the frugal side, a disposition that makes her passionate about helping Australians better manage their personal finances. You can find her trawling recent news, frequenting the green room or brainstorming ways to simplify financial topics in a quest to make personal finance the new black. You will also find her in the lunch room, because, well, she’s frugal and packs her own lunch.

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