How to write a will in Australia

A will is a legal document that specifies what happens to your assets after you die. This includes your financial assets (like your savings or investments), any personal possessions or your family heirlooms. If you have children or dependents, you can also specify who you want to care for them when you’re gone.

If you don’t have a will, then the law will decide who gets your assets, according to Moneysmart. The law in question will follow your local intestate succession legislation, which will vary depending on your state or territory.

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How do I make a will?

There are two main ways to make a will. You can do it yourself, or you can seek 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 to make sure it is valid and binding.

What do I need to make a will?

According to Services NSW, to be eligible to make a will you will need to be over 18 years old (unless married) and you must have ‘testamentary capacity’ which means you:

• know the legal effect of a will
• are aware of the extent of your assets
• are aware of the people who would normally be expected to benefit from your estate
• must not be prevented by reason of mental illness or impairment from reaching rational decisions as to who is to benefit from your will.

If you are eligible to make a will, you will also need the following:

• a list of your assets such as property, bank accounts, superannuation and investments
• the names and addresses of your beneficiaries (the people who’ll receive your assets)
• if you have children under the age of 18, the name/s of whomever you’d like to appoint as their guardian(s)
• specific gifts you wish to make to particular people or organisations, such as personal items or sums of money
• the details of your funeral if you have a pre-paid arrangement
• a responsible and competent executor. The role of executor includes collecting the estate assets, paying debts, and distributing the assets to the beneficiaries named in the will. You can choose a friend or relative, or appoint an independent trustee organisation.

How do I write my own will?

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

But, 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. For example, the New South Wales Trustee & Guardian website warns buyers to beware of DIY will kits. 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 feeling confident about completing a DIY will, or if you think your situation may be even slightly complicated, then getting professional help may be a wiser choice. There are plenty of solicitors and law firms who can help you. You can also 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 of it after you die.

What should I include in my will?

Your will is your chance to say what happens to your things when you die. Your finances and assets are collectively known as your estate. Organising what happens to them is known as estate planning, and includes the distribution of money you have in savings or investments, or any other valuable assets such as property. It’s often wise to keep an up-to-date list of all your assets that form part of your estate.

Your will should name who you want as the beneficiaries of any money or items from your estate. This could be your family or friends, organisations, charities or trusts that you may wish to be set up after your death. The Northern Territory Government advises that your beneficiaries will only inherit what is left after all your debts are paid.

Your will should also be clear about what you want to happen to any children or dependents who still need care. And, keep in mind that if you have any particular funeral arrangement requests, you can include these in your will.

When preparing your will, you should nominate someone as an executor. This is the person who will be tasked with carrying out your wishes. Your executor can be a partner, family friend, solicitor or 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 will also 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 your situation is.

What may not be covered by a will?

Not everything may be covered by your will when you die. This can include 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”.

Your superannuation is not automatically considered as part of your estate. It may be worth considering making 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 stipulates where you want your remaining super fund money to go.

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

There may also be other assets that may not be covered in your will, such as any family trust you may be part of, or assets of a private company you’re involved with – even if you’re the sole director. On the other hand, shares of a company can be included in a will.

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?

It’s often worth keeping a regular check on your will to make sure the information is always accurate and up to date.

It is possible to change your will. As you age, life throws many changes and challenges at you, 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.

You may marry, have children, make investments and buy assets you would like others to inherit. You might inherit property or assets from others that may be important to your family. You may also separate or divorce from a partner, and potential beneficiaries may fall out of favour or even pass away. This could be the same for any nominated executor(s).

So make any necessary changes as soon as possible, and in a way that maintains your will’s status as a legal document. You may even dispose of the old will and make a new one. But make sure your latest will is always dated.

What happens if I don’t have a will?

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

There are various estimates for the number of people around Australia who don’t have a will. For example, according to studies by the Public Trustee’s office in Tasmania, 30% of the island state’s population over the age of 30 and almost half of Tasmanian families with children under the age of 18 don’t have a will. In Queensland, the Public Trustee Samay Zhouand puts the figure even higher. “Nearly 50% of Queenslanders do not have a valid will, with one in five people thinking a will is not necessary if you have no assets, family or dependents,” he told Canstar.

And in New South Wales, Professor Prue Vines – an expert on succession law, including wills and estates, at the Law Faculty of UNSW Sydney –  tells Canstar that if you die without a will then efforts will be made to distribute your estate through your family.

For example, according to the Law Society of NSW, usually if you die without a will, all your assets will pass to your spouse. If you do not have a spouse, the order of relatives who are eligible to inherit is as follows:

• Children
• Parents
• Brothers and sisters
• Grandparents
• Aunts and uncles
• Cousins

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,  Professor Vines says that estates generally then go 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 can 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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