Wills & Estates
Why Make a Will?
Although some people choose to make their own will and it may seem easy enough, the law around wills can be complex. There is more than a century of case law and several legislative instruments that affect how a Will should be written and interpreted.
In making a homemade Will, you risk not drawing it up properly or not expressing your intentions clearly enough. It’s also easy to create a tax liability which your beneficiaries will have to pay. A homemade Will will is more likely to be contested, which means the whole process of giving away your assets could end up in very expensive court proceedings.
When you need a Will, it’s important you have it drafted by someone who understands the law and legal drafting and can advise you on the best way to make sure your assets end up where you want them to. At Southern Legal we have extensive experience in preparing Wills.
What is a Valid Will?
A will is a legal document which sets out who will receive your property and possessions when you die.
When you have a valid will, you give yourself the best chance of making sure your assets go where you want them to. So you should always make a will especially if you have a family or if other people are financially dependent on you.
To be valid a Will generally has three requirements:
- It must be in writing (whether handwritten, typed or printed)
- It must be signed, and
- Your signature must be witnessed by two other people who also need to sign the will.
But even where you’ve met these three requirements, your assets can’t be distributed immediately because a court may need to grant probate first. For details on probate visit our dedicated pages for probate matters.
What happens if you die without a will?
Dying without leaving a valid Will is known legally as ‘dying intestate’, there is a standard formula used to distribute your property and possessions. Whilst this may mean all your assets will pass to your spouse or children, it is not necessarily the case.
The situation becomes much more complex if you have a legal spouse and a de facto spouse (ie you’ve separated but not divorced and have a new unmarried partner), if you have children from different relationships, or if you die with no spouse and no children.
The court’s formula usually only lets your family members inherit from you. So having a valid will is vital if you want to leave gifts to friends or charities.
How are your wishes, as contained in your Will, carried out?
When you make a will you will appoint an executor and trustee who will handle your affairs when you die. Whilst it is usual to choose one person to perform both roles, you can name different people as executor and trustee, and you can name as many executors as you like, although appointing more than two can make for complicated decision making and we do not recommend this approach.
The executor’s role is to obtain probate, pay your debts, and distribute your assets in line with your will.
Your trustee administers any trusts set up in the will. This usually happens where you leave assets to people under the age of 18. Before you nominate someone as an executor or trustee, you should make sure they’re comfortable taking on the responsibility you’re giving them. It’s often a good idea to appoint someone younger than you, or to nominate alternate executors and trustees, in case the ones you’ve appointed die before you do.
Because of their expertise in administering wills, people often choose to appoint their solicitor as executor and at Southern Legal we are prepared to accept instructions to do this.
Changing Your Will
You can change your will whenever you like. You should certainly change your will when your circumstances change – for instance, if you divorce or remarry, or if one of your beneficiaries dies.
Unfortunately a Will cannot be changed crossing something out and writing something different.
If you want to make a minor change to your Will, then it may be suficcient to make a codicil, an authorised amendment to the will. Similar to a Will, a codicil needs to be in writing and signed and witnessed by two people. but these do not need to be the same people who witnessed the Will itself.
If you want to make a major change, it is usually best to make a whole new will.
What happens if you marry or divorce?
Usually, getting married cancels the terms of any will you’ve previously drawn up but there are exceptions, for example if the Will has been made with the express intention of your marriage taking place.
On divorce, it cancels any gift you made to your former spouse under your will as well as cancelling their appointment as trustee, executor or guardian under your will, except as trustee for property left to any children.
Therefore it is imperative that you should always make a new will if you marry, divorce, or if you’ve been separated for a long time.
Who can you leave your assets to?
You can leave your assets to whoever you like, but you have a general obligation to provide adequately for your spouse or de facto partner, your children, any other dependents. If you don’t they can bring a Family Provision claim against your estate and your nominal estate. In New South Wales this is done under under the Succession Act 2006 (NSW). For further details on this see our dedicated pages for Family Provision Claims.
Where should you keep your Will?
Your Will in a safe place and let your executor know where you’ve put it. That’s because, if you misplace your will and no one can find it, it won’t be effective. Southern Legal can store your will for you (free of charge) and give you a certified copy for your own records.