How to write a will in Australia

If you want to control what happens to your assets and dependents when you pass away then you need to have a will. A will is a challenging, but important, topic we all need to tackle. But how do you make a will and where can you get some help?

A will is a written legal document that specifies what you want to happen to your assets after you die. That includes your financial assets, such as any savings or investments, any personal possessions or family heirlooms, and if you have children or dependents you can say who you want to care for them when you’re gone.

If you don’t have a will then the federal government’s Moneysmart website says the law will then decide who gets your assets and it warns “this may not be who you wanted”.

How that happens will depend on which state or territory you live in as the laws may vary between them.

How do I make a will?

There are two main ways to make a will: you can do it yourself or you can get some professional advice from a solicitor or your local public trustee, an independent body set up by your local state or territory government.

Either way, given it’s a legal document, you need to be careful to make sure it’s set up properly.

“If your will isn’t done properly, it will be invalid,” the Moneysmart website warns.

How do I write my own will?

There are plenty of do-it-yourself will kits available in stores and online, and this may be an option if you think your situation is fairly simple and straightforward. It may also be cheaper than having a will set up by a professional.

But again, you need to make sure any DIY will you set up is completed properly and complies with your local state or territory laws. If not, then it may be invalid.

The New South Wales Trustee & Guardian website also warns “buyers beware” of DIY will kits.

“Do-it-yourself will kits are rarely adequate when it comes to handling complex situations, and anyone making their will without professional assistance risks making a mistake, overlooking something or creating uncertainty about their wishes,” it says.

You may want to get a solicitor or someone from your local public trustee to check your DIY will, and they may charge you a fee.

If you’re not confident in completing a DIY will, or you think your situation may be even slightly complicated, then getting that professional help may be a wiser choice.

There are plenty of solicitors and law firms who can help you, or you can ask your local public trustee office for help. Check first to see what fees they may charge, for both drafting a will and any execution after you die.

What should I include in my will?

You will is your chance to say what you want to happen to your things when you die. That includes the distribution of any money you may have in savings or investments, and any other valuable assets such as jewellery or property, collectively known as your estate.

It is wise to keep a list of all your assets that form your estate, and keep that list up to date.

Your will should name who you want as the beneficiaries of any money or items from your estate. They could be family or friends, or even organisations or charities you wish to donate to, or trusts you wish to be set up after your death.

As the Northern Territory public trustee points out, your beneficiaries will only inherit what is left after all your debts are paid.

Your will should be clear about what you want to happen to any children or dependents who still need care.

If you have any particular request on what you want for any funeral arrangements then you can include this in your will. For example, whether you want to be cremated or buried.

When preparing your will you should nominate someone as an executor, the person who will be tasked with carrying out your wishes. This can be a partner, family friend, solicitor or you may want to appoint your local public trustee.

“They must be someone with the capacity to administer complex legal and financial affairs – although they can seek advice and support to carry out their duties,” says the South Australian public trustee website.

Make sure you include clear and detailed descriptions on who your intended beneficiaries are and any executor(s) including their up-to-date contact details.

You need to get your will and any copies signed and dated by you and any relevant witnesses in accordance with your local rules and regulations.

Once complete you should keep your will in a safe place, and consider providing a sealed copy to any of your executors. If you’ve gone through a solicitor they may keep a copy, or you may be able to lodge a copy with your local public trustee.

How much it may cost to draw up your will with a professional will depend on how simple or complicated is your situation.

What may not be covered by a will?

There are a number of things that may not be covered by your will when you die, such as any assets you co-own with someone else.

When an asset is co-owned and one person dies, the asset generally passes to the surviving partner, under what’s often referred to as the “right of survivorship”.

“The effect is as though the deceased person never held the share in the asset,” says the Victorian law firm McNab McNab & Starke on its website.

“Any attempt to give away that share in the person’s will fails because it is not an asset of the estate.”

It’s generally the same with any joint account or other joint investments you may have with someone else who survives you.

Your superannuation is not automatically considered as part of your estate so you may have to make separate arrangements on where any funds should go when you die. You may need to set up a binding death benefit nomination with your super fund which tells it where you want your remaining super fund money to go.

Any life insurance policy you have is generally not considered part of your estate. That’s because when you take out a life insurance policy you usually nominate at that time who should be the beneficiary of any payout after you die.

There may be other assets you’re involved with that may not be covered in your will. They include any family trust you may be part of, or a private company you’re involved with – even if you’re the sole director, says the Toowoomba-based law firm Masons Solicitors.

If you’re not sure what may or may not be covered by your will you might want to consider getting some independent professional advice.

How often should I check or update my will?

You should keep a regular check on your will to make sure the information is always accurate and up to date.

You must be at least aged 18 before you can take out a will, and you might not think you have much worth detailing at that time. But as you age, life throws up many changes and challenges and you may find that your assets start to grow.

So it’s important to keep your will up to date to reflect those changes.

For example, you may marry, have children, make some investments, buy things you would like others to inherit, inherit things yourself from others that may be important to your family.

You may also separate or divorce from a partner, potential beneficiaries may fall out of favour or even die. The same for any nominated executor(s).

So make any necessary changes to your will as soon as possible, and do it in a way that maintains your will’s status as a legal document.

You may want to scrap the old will and make a new one. Make sure your latest will is always dated. It’s your latest valid will – your last will and testament – that will be used after you die.

What happens if I don’t have a will?

If you don’t have a will that means you will have no say on what happens to your things once you die.

There are various estimates for the number of people around Australia who don’t have a will.

For example, in Tasmania the Public Trustee’s office says its studies show that 30% of the island state’s population over the age of 30 don’t have a will, as well as almost half Tasmanian families with children under the age of 18.

“This leaves Tasmania’s youngest generation vulnerable in the unfortunate event of both parents passing away,” it says on its website.

In Queensland, the sunshine state’s Public Trustee, Samay Zhouand, puts the figure even higher.

“Nearly 50% of Queenslanders do not have a valid will, and almost 20% die each year without one,” he told Canstar.

“This can create a tremendous amount of uncertainty and distress for those left behind by not knowing what steps to take.”

Of those in Queensland who have made a will 10 years ago, about 30% haven’t updated it to make sure it’s still relevant and valid.

Professor Prue Vines, an expert on succession law, including wills and estates, at the Law Faculty of UNSW Sydney, said if you die without a will then efforts will be made to distribute your estate through your family.

But family structures today can be complicated, especially when you consider blended families or Aboriginal and Torres Strait Islander people where family connections may be very different.

If there is no identifiable family, she said estate generally then goes to the government.

“If people don’t have a will they should make one,” Prof Vines told Canstar.

“If you have a simple family and simple property you can probably make it yourself. otherwise – and even then – it really is worth paying a lawyer to do it.”

Where can I get help with a will?

If you want to find out more about finalising a will you may want to contact a local solicitor or law firm who deals with such matters. Your state or territory law society may be able to help.

If you don’t want to go through a solicitor then you might want to contact your local public trustee to see what help they can provide.

Australian Capital Territory

• Public Trustee and Guardian for the ACT
• ACT Law Society

New South Wales

• NSW Trustee and Guardian
• Law Society of New South Wales

Northern Territory

• Office of the Public Trustee
• Law Society Northern Territory

Queensland

• The Public Trustee of Queensland
• Queensland Law Society

South Australia

• Public Trustee South Australia
• Law Society of South Australia

Tasmania

• Public Trustee Tasmania
• Law Society of Tasmania

Victoria

• State Trustees Victoria
• Law Institute of Victoria

Western Australia

• Public Trustee Western Australia
• Law Society of Western Australia

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