What is a will?
A will is a written document in which you outline how you want your property and assets distributed after you die.
In a will, you formally specify:
- how you want to provide for the people you care about when you die
- any specific items you wish to give
- any other instructions you have (for example, you may wish to specify whether you would like to be buried or cremated).
The person making a will is called a testator.
The person or organisation appointed to make sure the wishes in your will are carried out is called the executor.
The person who receives property or assets under a will is called a beneficiary.
Why should you make a will?
Everyone over the age of 18 should make a will.
A will is the only way to ensure that your estate is distributed in the way you wish.
It is also important to be aware that a will may make life easier for family and friends after your death. When someone dies, accounts in a sole name are usually frozen, except for the payment of funeral expenses. Having a will may make it easier for beneficiaries to gain access to funds, especially with smaller estates where probate may not be required.
What happens if I die without a will (intestate)?
If you die without a will, you die intestate.
What does this mean?
Dying intestate means that no one is sure who you wanted as your beneficiaries or executor because it has not been recorded in a legal document. In short, if you don’t have a will, no one can prove how you wanted your property and assets distributed after your death.
If you die intestate in NSW, your assets will be distributed according to a pre-determined formula, with certain family members receiving a pre-determined percentage of your assets, despite what you may have wished.
If you die intestate, it can make life very difficult for your surviving spouse or partner. They may even suffer unnecessary financial hardship and emotional stress.
Can you prepare your own will or should you get a lawyer to do it?
Yes, you can prepare your own will. However, it is not necessarily advisable to prepare your own will or use a do-it-yourself kit.
A will must comply with strict legal requirements. Otherwise, a court may need to look at it in order to resolve any ambiguity. This can cause considerable delays in your estate being distributed to your beneficiaries and also be very expensive.
In the worst-case scenario, a court may decide that your will is invalid.
If this happens, your assets will be distributed according to a pre-determined formula and not as you intended.
A person who is not legally qualified and attempts to draft a will risks making an error, creating uncertainty or missing opportunities for sensible estate planning.
Therefore, it is advisable to have your will drafted by a lawyer who is experienced in the area.
How does Monardo Solicitors approach wills?
At Monardo Solicitors, we know that the most important thing about a will is that it gives you peace of mind by protecting and providing for the people you care about.
How does our wills form work?
Our priority is to make drafting a will as easy and cost-effective as possible, as well as ensuring that your assets are distributed exactly how you intended.
So, for spouses, partners and defactos, we’ve designed a form that you can fill in quickly and easily.
We then use the information you’ve provided to prepare a will for you.
What are the benefits of this?
It is not only cost-effective, it gives you peace of mind because you know your will has been drafted by a solicitor, so will meet the legal requirements.
Step One: You fill in the will for spouses/partners/defactos form on this website
You simply fill in the will for spouses/partners/defactos form online and send it to us via the reply button at the bottom of the page.
Step Two: We will get back to you quickly, with a quote for how much it will cost to draft your will
We will review the information you’ve provided and provide you with a quote for drafting your will as per your instructions.
If we need any additional information or think there may be other issues, we will get in touch with you.
Step Three: We draft your will
If you are happy with our quote and ask us to go ahead, we will draft a will for you to review.
Step Four: You review your draft will
You review your draft will and let us know whether you would like us to make any amendments.
Step Five: We can arrange for you to sign your will signed and have it witnessed
We can also arrange for you to sign your will and have it witnessed. We can prepare copies for you and even arrange for the original to be stored in a safe place at no extra cost.
Can we help you if you don’t like filling in online forms or the situation regarding your estate is a little more complicated than is usually the case?
Of course we can assist. If you don’t like filling in online forms or your requirements for your will are a little more complicated, just give us call on 1300 529 029, to make an appointment to discuss your estate planning issues. Our experienced wills and estate team will be happy to assist.
Who can make a will?
In order to make a will in NSW, you must be over 18.
A will made by a person under the age of 18 is invalid unless it is made in contemplation of marriage that takes place, the minor is married or the court has approved the will under s 16 of the Succession Act 2006 (NSW).
What are the formal requirements for ensuring a will is valid?
In order for your will to be valid, it needs to comply with the following requirements:
- be in writing (it can be handwritten, typed or printed)
- be signed by the person making the will, and witnessed by two or more witnesses (beneficiaries should not be witnesses).
You must have also have something called ‘testamentary capacity’.
What does this mean?
- you know the legal effect of a will
- you are aware of the extent of your assets
- you are aware of the people who would normally be expected to benefit from your estate
- you are not prevented by reason of mental illness or mental disease from a reaching a rational decision as to who will benefit from your will.
What should a will contain?
Your will should contain the following:
- the names of the individuals, trusts and charities you want to benefit from your estate
- instructions on how you would like your assets divided between beneficiaries
- any specific instructions on how you would like your life to be celebrated.
If you wish to make a will, what are the key things you need to consider?
Before you make a will, you should consider the following:
- What do you own (property and assets)?
- Who do you want to leave your estate to?
- Who will be the executor of your will?
- Do you want to leave directions about the payment of debts and funeral expenses?
- Should you set up a trust or leave gifts directly?
- Do you have any concerns about who will be a guardian for your children?
- What sort of burial or cremation arrangements do you want?
How often should your will be updated?
The idea of a will is that it expresses your wishes at a particular point in time. It is advisable regularly to review your will as your circumstances change, so that it accurately reflects your current wishes:
Circumstances in which you may wish to update your will include:
- starting a de facto relationship
- the arrival of children or grandchildren into your family
- separation or divorce
- if your children marry or divorce and, as a result, have extended families
- if a beneficiary dies (when preparing your will, it may be wise to substitute beneficiaries)
- the death or a spouse or partner
- the value of legacies diminishing over time (for example, you may have left a sum of money that seemed significant when you last made your will but it may not be worth so much today)
- if you retire, because this often leads to people restructuring their affairs
- when you buy or sell assets (sometimes people like to leave specific assets to a specific beneficiary, but if you don’t update your will, some beneficiaries may receive nothing and others receive more than was intended in your will).
What does an executor do?
The role of an executor is to carry out the wishes of a person after they die. This involves managing the estate within the terms of the will, as well as protecting the assets of the estate.
An executor is responsible for:
- finding the will
- arranging for the disposal of the body
- getting the death certificate from the Registry of Births, Deaths and Marriages (often the funeral director can help with this)
- ascertaining the deceased’s assets and liabilities
- assessing the value of the deceased’s assets
- obtaining probate, if required
- paying the deceased’s debts, income tax, duties and funeral expenses
- distributing the assets according to the terms of the will.
Who should you appoint as your executor?
The most important thing about appointing an executor is appointing someone you trust.
In addition, you should be aware that there is a lot of responsibility and work involved in being an executor . It may even require an understanding of legal, financial and taxation issues.
Therefore, before you appoint an executor, you should consider the following:
- Does the person you wish to appoint have the time and requisite skills to carry out the role of executor?
- Would taking on the role of executor cause them undue stress?
- Do they live overseas or interstate (because this can make things more complicated from an administrative point of view)?
It may be a good idea to name an alternative executor to take over, in case your first executor dies before you or shortly afterwards.
If you don’t have a close relative or friend to name as executor, you may consider appointing:
- a lawyer
- a private trustee company.
If you appoint an executor, are they obliged to accept the appointment?
No, the person you appoint as executor has no obligation to accept the appointment.
They may be unwilling to undertake the considerable duties, responsibilities and liabilities that the role entails.
What happens if my executor renounces their appointment?
The substitute or alternative executor will then step in to act.
In NSW, if no alternative is named in the will, the Succession Act 2006 provides for who will manage the estate (usually the major beneficiary)
Therefore, it is always a good idea to talk to your proposed executor to see if they are willing to accept the appointment.
Does an executor get paid?
You may wish to include a provision in your will that your executor is financially compensated for the time involved in carrying out their responsibilities.
An executor may also apply to the court for payment from the estate for the work they have done.
In cases where a trustee is appointed under a will, what does that person do?
In the case of a trustee appointed under the terms of a will, that person looks after ongoing bequests to family and friends for a specific time stated in the will.
Do you have the right to see a will before probate is granted?
In, NSW, under the Succession Act 2006, certain people may be eligible to see the will before probate is granted.
Those people who are eligible include:
- any person named or referred to in the will, whether as a beneficiary or not
- any person named or referred to in an earlier will as a beneficiary
- the surviving spouse, de facto partner (of the same or opposite sex) or the children of the deceased person
- a parent or guardian of the deceased person
- any person who would be entitled to a share of the estate of the deceased person if the deceased person had died intestate
- any person (including a creditor) who may have a claim against the estate of the deceased person.
How can you change or revoke your will?
A will remains in force until the testator formally changes or revokes it.
The only situation where a will is automatically revoked is marriage, unless the will was made in contemplation of marriage.
A divorce will not revoke the whole will. However it will revoke:
- a gift to your former spouse
- the appointment of your former spouse as an executor, trustee or guardian, unless you express a contrary intention in your will.
However, a divorced person should make a new will, rather than relying on the partial revocation provisions.
If you need to change a will, you can do so by adding a codicil. This is an addition to the earlier will and is located in a separate document. A codicil has to meet the same formal requirements as a will. In a lot of cases, it may be easier to make a new will altogether.
What happens if you are living in a de facto or same sex relationship and you die without a will?
When a person who is in a legally recognised relationship dies, their partner has certain rights.
Since 1999, lesbians and gay men in relationships have the same rights as couples in heterosexual de facto relationships when it comes to state-based ones such as inheritance, funerals and other death-related rights.
This means that a surviving partner in a heterosexual, gay or lesbian relationship can:
- make decisions about organ donation and post-mortem examinations
- request a coroner’s inquest
- if there is no will and no executor, make decisions about funeral arrangements.
In cases where there is a valid will
Generally, the property and assets are distributed according to the person’s wishes as set out in the will, unless a family provision applies.
In cases where there is no will
If there is no will and the person dies intestate, the property is distributed as per the formula set out in the Succession Act 2006 .
Can your will be contested?
Although you are entitled to leave your assets to anyone you wish, in some circumstances, in NSW and other states, relatives and friends who believe they have not been sufficiently provided for are entitled to contest your will.
In NSW, under the Succession Act 2006, the following people can contest your will:
- a spouse
- a de facto partner
- a former spouse
- people who have lived in the same house as you if they can show they have been dependent on you.
Anyone contesting a will needs to convince the court that they should receive a share or greater share of your estate, based on their ‘need’.
If you have a complicated family structure, such as a second marriage or blended family, the likelihood of your will being contested may be increased.
Where should you keep your will?
It is important to realise that a will can only be used if it can be found when it’s required. You may have heard of cases where someone died and family and friends were aware that a will existed but were unable to locate it.
Therefore, it is important to store your will in a safe place such as:
- with a lawyer
- in a bank
- with a trustee company.
You should also keep a copy with your personal papers and a note stating where the original is kept.
Ideally, you should keep a list of your assets with your will, such as:
- bank accounts
- insurance policies
- title deeds.
You may also want to leave a list of people and organisations that should be notified of your death, such as:
- Department of Veterans Affairs
- Superannuation funds
- Australian Taxation Office.
Having this information organised will make your executor’s task much easier.
Do you need help with estate planning? Would you like to talk to a lawyer who has extensive experience in estate planning? Call our experienced wills and estates team now on 1300 529 029.