Frequently Asked Questions about Creating a Will and Estate Planning

Primarily, a valid will expresses your wishes regarding the distributions of your property after your death. Amongst other things, wills can also express your wishes about guardianship of minor children, they can create tax-effective legal structures for the benefit of your loved ones and may also express your wishes regarding your remains and funeral preferences.

• For a will to be deemed “valid” it must be in writing and signed by you (the “testator”) (or by some other person over 18 years old, in your presence and at your direction).
• Your signature made on your will or acknowledged by you in the presence of 2 or more witnesses present at the same time.
• You must have testamentary capacity to execute the will
• You must know the contents of your will and approve such contents.

• You must be at least 18 years old when signing the will (or if you are under 18 years old the court you can apply to the court authorise your will).
• You must have the mental capacity to know and approve how your will operates

• You must intend for the document to be your last will.
• You must understand how the will deals with your property.
• You must give instructions for the will to be prepared in the way it was when you signed it.

No, you do not need to register your will.

Unlike in some countries, it is unnecessary to “register” your will in Australia, and there is no registration authority. It may be prudent however to keep the original in the same keeping of the drafting solicitor, and to give copies of the executors named in your will.

If you don’t make a will before passing away the distribution of your assets will be determined by state laws. These laws will also determine who will be the representative of your estate.

Passing away intestate (i.e. without a will) often results in greater stress, fees and delays for your loved ones. This is because they will be burdened with additional requirements to gain administrative powers over your estate, such as tracking down various birth, death, marriage and divorce certificates, whether from Australia or abroad. Often such certificates need formal translation, are hard to find and great delays occur when dealing with foreign registries. For such reasons, we suggest that you contact our will drafting solicitors today for a no-obligation chat.

If you die without a will, your family will need to make an application for Letters of Administration. You can read more about these applications here.

When deciding how you wish to divide your assets upon your death, it is important to know which assets you own personally and those that are owned as ‘joint tenants’ and will not form part of your “estate” when you die. You can include almost any of your assets or personal possession in your will, including:

• Real estate you hold, solely or as a tenant-in-common.
• Bank accounts.
• Shareholdings.
• Long service leave.
• Nursing home bonds.
• Motor vehicles (e.g., car, bike, boat or even an aeroplane).
• Other personal property (e.g., a watch, jewellery, pets, plants, shoes and bag collections, vinal records).

Deciding to leave a relative out of your will is a serious decision and may have significant repercussions on your family and the person that is left out. You can leave someone out of your will in two ways, “implicitly” or “explicitly”. For example:

• You can either not mention them in your will, but provide reasons for their omission in a separate document, such as a statutory declaration; or
• You may mention them and the reasons for their exclusion in the body of your will.

Yes, in Australia your will can either be disputes on the grounds of validity, or it may be challenged because it is “unfair”.

Persons identified as ‘eligible persons’ under the Succession Act 2006, may challenge your Will if they can successfully claim that you did not make adequate provisions for their maintenance, education or advancement in life. Eligible persons include:

1. A person who was your spouse at the time of your death,
2. A person with who was living a de facto relationship with you at the time of your death,
3. Your child,
4. Your former spouse,
5. A person who was, at any particular time, wholly or partly dependent on you,
6. A person is your grandchild, or
7. A person who was a member of the household of which you were also a member.

Wills may also be challenged on the basis of validity, whereby the challenger may asset that:

1. The will-maker did not possess mental capacity at the time of executing the will.
2. The will-maker was coerced into signing the will.
3. The will is a forgery.
4. The will-makes did not know and approve the contents of the will.
5. The will-maker experienced undue influence when signing the will.

Yes. Many people have written their own wills and so could you. However, many estates have also needlessly lost hundreds of thousands of dollars due to will-makers trying to save a few hundred dollars by writing their own wills.

Before making the decision to embark on the DIY journey, have an obligation-free chat with our specialised will-drafting solicitors to see if any of your personal circumstances warrant the involvement of a solicitor. Leave us a message here and we will get in contact with you shortly.

Most of the “online wills” websites operate in the grey zone of “legal information providers” - companies making money from legal services but which limit their liability by arguing that they do not offer legal advice or services. Since you are not legal represented when using such websites, your family members may not have any recourse should things go awry. In contrast, solicitor have professional obligations to fulfill when providing legal services, are answerable to state commission bodies and must be covered by professional indemnity insurers in order to practice law.

It is self-evident that such websites appeal to the masses, but naturally do not have the opportunity to create wills which account for your individual circumstances to the extent that solicitor wills. Most importantly, they cannot offer you the invaluable benefit of the legal advice you would receive from your will-drafting solicitor, and which you can keep in mind, and act on for many years to come.

At the end of the day, the will-make must decide – should I risk my family’s inheritance to save a few hundred dollars?

Yes, you can use a newsagent’s will. However, just as is the case with website wills - these products and services naturally lack the necessary attention to your individual circumstances to guarantee that your will is appropriate to your family’s needs.

DIY wills are the #1 cause of unnecessarily legal fees, stress and delay for families of will-makers when it comes to the probate process (the Supreme Court application to validate your will following your death).

The main reason we recommend that you do not use a DIY will is that you will not receive the invaluable legal advice that a will-drafting solicitor will give as part of the will-drafting service. You may use this advice for many years to come, and can be rest assured that your family suffers no unnecessary bureaucratic stress following your passing.

The cost of your will is determined by your circumstances – namely, the complexity of your finances, asset-holdings, family dynamics and instructions.

The cost of a will which simply leaves the entirety of a husband’s assets to his wife, will naturally cost less than a will with a testamentary trust, set up for the purpose of minimising taxation obligations for your heirs many generations down the line.

Give us an obligation-free call today to discuss your unique needs and circumstances. We can even perform a review of your current will free of charge!

Wills generally do not have an expiry date. However, events such as marriages and divorces can trigger wills and bequests to become revoked.

It is generally a good idea to review your will whenever you experience a significant life event, such as the birth of a new child, or marriage problems.

If you die with a will, your appointed executors under your will can apply for a grant of probate to administer your estate according to the terms of your will.

However, if you die without a will (i.e. “dying intestate”) then you lose all control over the administration and distribution of your estate. Statutory rules in these circumstances direct that only an exclusive class of persons within your kin can apply for a grant of letters of administration to administer your estate. These statutory rules also predetermine your beneficiaries and what portions from your estate they are to receive.

You can change your will in the future in the following ways:

• Creating a completely new will: This is the preferred way to change a will, as it minimises the chances for error and ambiguity. The creation of a new will generally completely revokes any former wills.
• Creating a codicil to your existing will: A codicil is a separate document that changes or adds certain terms in your existing will but leaves other terms unchanged. A codicil should follow the formal validation requirements of a valid will.

A marriage generally has the effect of revoking your will unless your will is deemed to have been made in contemplation of marriage. There are other exceptions, which are best to discuss with one of our will-drafting solicitors.

Divorces usually have the effect of revoking sections in the will in which the divorced had previously stood to benefit from the will-maker. Again, please contact us for an obligation-free consultation if your marriage or divorce is likely to have a significant effect on your will.

Deciding where to store your will can a difficult decision. The main goal is to ensure that your loved ones are aware of the location of the original will. Wills should be kept in a secure location which are known and accessible to your executor when you have passed away. They must be kept somewhere protected from flood, fire or theft. Ideally you should keep your will with your solicitor.

A testamentary trust is a legal structure created by a will which can be enlivened after the death of the will-maker. These structures are effective estate planning tools that protect estate assets, and can act to minimise taxation obligations for your beneficiaries, allowing for generational wealth to accumulate.

Contact one of our will-drafting solicitors today for an obligation-free discussion about how a testamentary trusts can help your family.

Our wills and estates solicitors have processed thousands of probate applications across all states of Australia. This puts them in the unique position of knowing how to draft wills which minimise the expense and stress which accompanies the probate process (after your death).

Will drafting solicitors will listen to your unique family and asset circumstances, and advise you on the most effective ways to structure your will to ensure that your wishes are honoured, respected and reflected in the distribution of your estate.

Our solicitors will answer any questions you have about wills and estates, including what may occur if one of your relatives wants to challenge your will.

Depending on your circumstances, we can draft and finalise your will either immediately or in the same week as we receive instructions from you. This will depend on the urgency of your situation and the complexity of your family structure, finances and asset holdings and on your instructions.