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 to ensure your assets are distributed as you would like. To make it a little easier for you, we look at how to write a will including what should be included and who you can talk to for assistance.
What is included in your will?
To put it simply, your will is the legal document that sets out how your assets are to be distributed upon your death. It will contain instructions for the division and disposal of your assets. It can also cover some lifestyle requests such as nominating guardians for your children as well as your funeral and burial wishes. Your will can also determine the timing of inheritances by use of trust structures as well as donations you would like to make to charities.
When writing a will, you are required to appoint at least one executor who will ensure your wishes are enacted. It’s worth having a serious think about who you want to nominate as your executor. Some considerations include their age, their relationship with your family and the complexity of your situation.
What isn’t covered in your will?
There are a number of assets that you are likely to have that are not automatically dealt with through your will. Some of these assets can represent a significant chunk of your total wealth.
- Some jointly held assets: If you hold assets jointly with someone else (for example, a joint bank account, a joint home, a jointly held car), those assets will pass automatically to the co-owner rather than be distributed through your will.
- Superannuation proceeds: Your superannuation is not automatically part of your estate. This can be especially significant if you hold life insurance through your superannuation fund. Generally, the payout of your 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. You should discuss this issue with your superannuation fund.
- Life insurance policy proceeds: Individual life insurance policies also do not automatically go through your will. You can, however, nominate your estate as the beneficiary in order to have the proceeds distributed via your will.
- Interest that you have as owner or beneficiary of a trust: Generally, the relevant trust deed for any trust that you may be a member of will outline how ownership will be transferred.
How to write your own will
There is no doubt that using a DIY will kit can be a cheaper option than having your will drafted by a solicitor, but keep in mind that your will is a legal document and if you do not know how to write a will and it is not executed properly, it may be invalid. Because of this, it is often advisable to seek professional assistance.
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)
If you choose to write your own will, here are a few tips to get you started.
- 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.
- Find a suitable DIY kit – there are many available for sale online.
- 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.
- 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.
- 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.
- 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.
- 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.
Who can help write your 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.
- ACT – Public Trustee and Guardian for the ACT
- NSW – NSW Trustee and Guardian
- Northern Territory – Office of the Public Trustee
- Queensland – The Public Trustee of Queensland
- South Australia – Public Trustee South Australia
- Tasmania – Public Trustee Tasmania
- Victoria – State Trustees Victoria
- Western Australia – Public Trustee Western Australia
Frequently asked questions
If I die, does everything automatically go to my partner?
Technically, it doesn’t. If you die without a will, you are “intestate”, and each state has its own formula for how assets are distributed from your estates. Usually, this means it goes to your spouse and children if you have them.
I don’t own much, do I still need a will?
Your estate is probably worth more than you think. If you have any personal possessions or superannuation, this must be paid to your estate and distributed. If you have life insurance and pass away accidentally, there could be a payout included in your estate. Even if you don’t have a lot of money or many assets, you should still make a will.
Does the government get it all if there is no will?
If you don’t leave a valid will, an executor must work through all your living relatives, from the closest to the most distant, to distribute the estate. Only in instances where there are no eligible relatives that the estate proceeds would go to the government. Which relatives are eligible depends on which state or territory you live in.
Where can I store my will to keep it safe?
The Public Trustee in each state will have several offices in regional and rural districts as well major cities, and you can update your will at any of these offices. Queensland’s Public Trustee currently maintains 16 offices and they have a distance network for people living too far from an office.
Is it expensive to make a will?
You have many options to create your will. It could be a good idea to get quotes from a few solicitors before choosing one. Alternatively, you can make your will for free with the Public Trustee in your state or territory.
Can I just write my wishes rather than prepare a formal will?
A few notes or a homemade will that outlines your wishes will not be recognised legally unless it has been signed and witnessed correctly. If you don’t prepare your will properly or get it witnessed, your executor might have to go to court in a bid to have the will declared valid so your beneficiaries can receive your estate.
The newsagent or post office will have DIY will kits for sale, but you will need to make sure yours satisfies the requirements for your state or territory. For more information about what a valid will requires where you live, see our list of state resources above.
Do I need to update my will?
There are many life events that can affect your will. You should review your will at minimum every five years, or update it any time these events happen to you:
- Start a de facto relationship
- Get married
- Get divorced
- Start or end a registered relationship including a civil union
- Have a baby
- Experience the death of a loved one such as a spouse, partner or beneficiary
If you do not update your will then parts of it become invalid and this can make the whole will invalid. It’s worth taking an hour every few years to check that your will still matches your situation in life.
Will giving reasons for decisions in a will prevent challenges?
Giving the reasons for your decisions about who gets what does not prevent challenges. In fact, it can sometimes cause challenges when people believe they have been publicly shamed or slighted in a will. If you want people to understand why you allocated your assets the way you did, an alternative is to write them a separate, private letter that can be given to them by the executor when the estate is distributed.
Do I need to pay a family executor?
Sometimes family members request payment out of the estate for acting as an executor in difficult situations, such as where the will is complicated or where there is family conflict over who gets what. This decision is up to you.
Can beneficiaries challenge a will?
The fact is, you can’t stop someone from making a challenge. State or territory legislation about estate planning or family law specifies people who are entitled to challenge a will. Usually, a challenge can be made by a spouse, children, parents, and a de facto partner.
Do I need to specify charities to donate to in my will?
Some Australians think they can just include a generic clause that whatever’s left after distribution of allocated possessions to loved ones can go to charity. However, your executor can’t choose charities for you, so you need to think about what causes or charities you would like to support and specify this in your will.