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How Wills Work in Australia: The Ultimate Guide
A Will is a document that sets out your wishes for the distribution of your assets after you die.
It is important to realise that specific legal requirements need to be followed for a Will to be valid.
If you die without a Will (that is, intestate) your assets will be divided according to a legal formula.
In other words, if you don’t have a Will, you don’t have a say. This may not be what you wanted, and the process may cause stress, delay and expense to your intended beneficiaries.
How a Will works in Australia
A Will is a document that includes the wishes and testamentary intentions of the deceased, as to how their assets shall be divided when they pass away. A will is prepared whilst the person is alive and has full testamentary capacity.
Once a person passes away, the Executor appointed under the Will applies for Probate. Once probate is granted, they will then transfer or sell the assets according to the gifts within the Will and distribute to the relevant beneficiaries. This process is known as “administration” of the deceased estate.
Who needs a Will and why?
Everyone needs a Will!
If you are over the age of 18 years, even if you have little assets, you should still have a Will.
There are many reasons why you need a Will, but the most basic is that the assets you have should be gifted to those that you have chosen, not those who are specified by law if you die without a Will (or intestate).
You may also need a Will for the following reasons (this is not a complete list):
- You have large asset holdings;
- Complex asset holdings (businesses, family trusts);
- Children;
- Spouse/Partner;
- Divorced;
- Divorced and remarried;
- Complex family situation;
- Wish to leave someone out of a Will that would be entitled under the law.
If you die without a Will – you die intestate – which means that your estate will be distributed according to the law, not your wishes.
Further such distribution will usually not be the most tax-effective way to gift your assets leading to unnecessary tax bills for your estate and your beneficiaries.
When should I make or update my Will?
You should make a Will after you turn 18.
It is particularly important to make a Will (or update your Will) after you are married, divorced, or if you are living in a de facto/same-sex relationship.
Situations where you may want to update your Will might include:
- Buying a house
- Marriage/Separation/Divorce
- Birth of a child
- Retirement
- Change of beneficiary/executor
- Change of specific gifts
- Change in relationship with family members
- Change in asset holdings
How to begin writing a Will
The first step and most important step is to seek advice from a professional! Your Estate Planning Lawyer.
At Amanda Little & Associates we will step you through the process of preparing your Will and your estate plan.
Prior to attending with one of the Solicitors, we ask our clients to consider the following questions:
- Who would you like to appoint as your Executor? (Your Executor is a person who takes your Will and distributes your estate). Do you want to appoint more than one Executor? In the circumstances where they cannot be your Executor/Executors who do you want to be your Alternate Executor?
- Are there any specific gifts you would like to give? If so, what are they and who would you like to give them to?
- Where would you like the rest of your Estate to go? Would you like to give it your Wife/Husband, your partner, your children, or any other third party?
- Are there are beneficiaries under 18? If so, would you like to appoint a separate Trustee as opposed to the Executor to manage the Trust monies pending your minor beneficiaries coming of age? How old do you want the minor beneficiaries to be before they can access their inheritance?
- Do you have any infant children? If so, who would you like to appoint as the guardian of your children should you pass away prior to them attaining the age of 18?
- Do you have any requests for burial or cremation? And if so, are there any specific details you would like to include within your Will?
- Are you an organ donor? If so, would you like this request to be included in your Will?
Making your Will is one of the most important things you will do in your life, therefore finding a lawyer you trust to assist you with this process is vital. Amanda Little & Associates Estates will draft your Will so that upon your passing your assets are distributed to those whom you have chosen. We will also assist you in creating an estate plan to minimise the risk of your estate becoming contested successfully, should your circumstances be complex.
How to execute a Will
After you Will is prepared by our office, to execute the Will requires the following steps:
- Ensure you have read the Will and that you understand and are happy with what the Will states;
- Find two independent adult witnesses (this means anyone over the age of 18 who is not a beneficiary or an executor);
- Date the Will where indicated on the second last page and on the last page at the top;
- In the presence of your witnesses:
- Sign the bottom of each page of the Will;
- Initial any handwritten alterations to the Will;
- In your presence, each witness uses the same pen to:
- Sign the bottom of each page of the Will;
- Initial any handwritten alterations to the Will;
- On the final page, the witnesses must write their full names, addresses, and occupations.
Once this is done your Will is properly executed!
Dealing with a complex Will
There are many circumstances that can make your Will and estate plan complex and these can include:
Second or more marriages/relationships and children from each relationship;
- Divorce;
- Interplay between Family Law and Estates;
- Interplay between Family Trusts, Self-Managed Superannuation Funds, and Corporations and Estates;
- Not including ‘provision’ for those who may be entitled by law to provision;
- When a person whom would otherwise be entitled to provision in the estates, but has acted in a way that ‘disentitles them’ to provision;
- Complex gifts;
- Forgiveness of debts;
- Disabled beneficiaries; and
- Minor beneficiaries.
There are many more situations when specialised knowledge is required to ensure that proper provisions are made and your Wills and estate plan are considered carefully.
FREQUENTLY ASKED QUESTIONS ABOUT HOW WILLS WORK IN AUSTRALIA
No, a Will cannot be changed after death.
Only the Testator (the Will maker) can change the Will.
A Will however can be challenged after the death of the testator through a claim under Family Provisions (legislation). If the person challenging the Will / contesting the Will is successful the court may award them a share of the estate which the testator did not leave them in their Will.
Yes, a Will can be contested.
However, to contest a Will a person must be an ‘eligible person’. Al eligible person includes:
- Surviving husband or wife of the deceased person;
- A person who was living in a de-facto relationship with the deceased person;
- A child of a deceased person, including an adopted child;
- A former divorced husband or wife of the deceased;
- A person who was:
- Wholly or partly dependent on the deceased person; or
- A member of the household of the deceased person.
- A person who was in a close relationship with the deceased person.
No – Wills do not “expire” in Australia; however it is important to know that important life events can void or affect your Will.
Events or things that can affect your will include:
- Marriage;
- Divorce;
- Death of an Executor/s;
- Death of a beneficiary/s;
- Disposal of a gifted asset;
- Bankruptcy;
- Change in family circumstances.
If any of the above have affected you since making your Will, please call us to make a consultation to discuss the change in your circumstances.
Most Wills will need to be legalised by way of a grant of Probate.
On some rare occasion’s estates can be administered without the need for probate – such as a surviving spouse, or a small estate where the costs of obtaining Probate is prohibitive given the value of the estate.
At your consultation with your lawyer, they will determine if Probate is required to administer the estate.
Wills are usually held/filed by the Solicitor who prepared them in “safe custody”.
If this is not the case a Will may be located at the Supreme Court, Public Trustee, Bank or personal home of the testator.
No, Wills are private documents and they are not on public record after death.
However, when applying for probate the process of applying for Probate must be published publicly to allow creditors to apply against the estate to be paid.
In NSW Wills do not have to be registered.
In fact, there is no national or state registration system currently in place.
This often creates a burden for those trying to locate Wills. We encourage our clients to provide a sealed copy of the Will to their executors so that when they pass away the Executors can open the Will and then attend our offices so that we can assist them to administer the estate.
If you are attempting to locate the Will, you should:
- Contact the deceased previous lawyers;
- Contact lawyers in the vicinity of where the deceased resides;
- Undertake searches with the Public Trustee and Supreme Court;
- Contact the deceased banking institutions;
- Publish a notice online and in the Law Society Journal;
- Search the deceased’s personal belongings.
No, they are not tax-deductible.
However, a tax-effective estate plan will save your estate significant loss of assets to tax. Why pay more tax if you don’t have to!