Everything you need to know about wills
The Australian Securities and Investments Commission estimates that nearly half of Australians die without leaving a will, so if writing a will is something you have been meaning to do but have not got around to, you’re not alone.
If you die without a will, a court-appointed administrator will distribute your possessions – possibly not in the way you would have liked. While it can be uncomfortable to think about how you would like your possessions distributed after you die, making a will provides peace of mind and assurance that your wishes will be carried out.
Who should make a will?
Everyone over the age of 18 should make a will, regardless of economic status.
What is a will?
A will is a legally binding, written document that records how a person wants their assets distributed after they die. When you make a will, you must nominate an executor – someone who is responsible for making sure the instructions in your will are carried out. Often, two executors are named, to ensure everything runs smoothly.
A common misconception about wills is that they are expensive to make. Cost-effective options include using will-assistance websites or to have your state’s Public Trustee help write your will, but it is important to have a solicitor check everything. They will charge a fee for this service.
What is the Public Trustee?
The Public Trustee is a government office in each state or territory, which acts as a trustee in the execution of a will, usually where there is no executor named or where the testator names the Public Trustee as part of that will.
The Public Trustee prepares a large number of wills throughout Australia for a nominal fee, but the testator must nominate the Public Trustee as executor. Public Trustees may exempt pensioners or those over 60 from paying fees.
What are the formal requirements for making a will?
The key requirements for a valid will are:
- It must be in writing
- It must be signed by the testator
- The testator must be of sound mind, memory and understanding
- The signature must be witnessed by two people – neither of which can be a beneficiary or the spouse of the testator
- Both witnesses must sign the will in the presence of the testator and each other
What should be in a will?
Your will should:
- State that it is your last will and that you revoke all previous wills
- Appoint one or more people to be your executor/s
- Provide for payment of funeral expenses and any debts
- State how you want your assets distributed, either by naming the item and to whom it is given, or by giving a person a certain percentage of the total value of your property
Wills often include other requests such as the appointment of guardians of young children. As wills are only meant to deal with property, these wishes are not strictly binding, but are usually carried out by the executor.
What can override a will?
If you have made a binding nomination in your superannuation fund or your insurance policies, the beneficiaries named in those policies will override anyone mentioned in your will. If you have a family trust, the trust continues and its assets will be distributed according to the trust deed, no matter what is written in your will.
How is a will updated or changed?
Wills should be reviewed every few years to ensure they reflect your most recent wishes. Once a will has been signed, amendments cannot be made simply by crossing out or adding clauses. The best way to amend or alter a will is by doing so in a separate document called a codicil. For a codicil to be valid, it must also meet the formal requirements of making a will.
When do I need to update my will?
You should update your will at any important stages of life.
Generally, a will is revoked on the day you are married or formally divorced by a court, so you will need to update it to account for your new status. Your will should also be updated upon the birth of any children or grandchildren so the will can provide for the child financially, and if applicable, nominate a guardian for the child in the event of both parents’ deaths.
You should also update your will if your spouse or any of your beneficiaries die, or if your financial circumstances change considerably.
For more information on wills, visit http://www.australia.gov.au/information-and-services/family-and-community/wills-and-powers-of-attorney