A will is a legally binding document which spells out your wishes regarding the distribution of your assets and the care of any of your minor children. In the event you die without a will, the assets of your estate will be divided between family members according to intestacy laws and you will have no say in the distribution of your assets. In the absence of a will, there is no guarantee that your wishes will be carried out and that your minor children will be cared for by family members who you would wish to raise your children.
Any adult person who:
should consider create a will.
Even if you believe you have no assets, it is still worthwhile creating a will because your estate may be entitled to substantial benefits under an insurance or superannuation policy. Furthermore, without a will, you will have no say over who cares for your minor children after you and your partner die (see "What is a guardian?").
It is important to make a will today, because you don’t know what tomorrow brings. All too often there is an unexpected death in the family or a sudden illness or disability occurs which makes it impossible for a person to make a will. Avoid the stress on families during these difficult times, or legal challenges from relatives, by making a will as soon as possible.
You must be over 18 years of age and be of sound mind to be able to make a valid will. A minor (i.e. a person under 18) cannot make a valid will.
When a person makes a will, they must appoint an executor. The executor is the person appointed by the willmaker to carry out their wishes after they pass away. In other words, they ‘step into the shoes’ of the deceased person. The role of the executor is to administer the estate as set out in the will and to protect the assets of the estate.
An executor has a fiduciary duty to act in the best interests of all beneficiaries when administering the estate. The executor must therefore discharge their duties with due care and loyalty to the beneficiaries.
The executor’s role starts as soon as the willmaker passes away. Some of the duties an executor would be required to undertake include making arrangements for the funeral of the deceased, determining the estate’s assets and liabilities, applying for a grant of probate, distributing the assets of beneficiaries, paying the estate’s liabilities and finalising the tax position of the estate.
Administering a deceased’s estate can sometimes be difficult and stressful, so a willmaker should consider whether it is worthwhile appointing an independent professional executor, such as Willed, to administer their estate.
A guardian is an adult who is appointed by the willmaker to look after their children if the willmaker and the other parent of the children dies. A guardian’s role is to look after the best interests of a minor child (i.e. a child under age of 18 years) for whom they have been appointed guardian. This means that you should not choose the other parent of your children to be the guardian of your children.
The guardian will be responsible for making decisions regarding the day-to-day control and care of your children, including decisions about their upbringing, education, health and welfare. Accordingly, a decision to nominate someone as a guardian is a serious decision that should be made carefully.
A beneficiary is a person or entity that you list in your will as being entitled to receive a benefit or asset from your estate when you die. Beneficiaries have several rights under a will, such as the right to:
Probate is a legal process which involves the court validating a deceased person’s will so that the executor named in the will can administer a person’s estate and distribute it to the beneficiaries. The process of validating the will is called a "Grant of Representation" or "Grant of Probate". A Grant of Probate gives a person the legal right to administer the estate of a person who has died. An executor with a Grant of Probate has the authority to deal with the assets of the estate such as bank accounts, real estate, superannuation, share portfolios, etc.
After a Grant of Probate is made, the assets will vest in the executor, and the executor will be required to distribute the assets of the deceased according to the will.
The deceased person’s bank accounts and other assets will be frozen until the executor has obtained the Grant of Probate, except that most financial institutions allow the executor named in will to withdraw limited funds from the deceased bank accounts to pay for the funeral.
An executor can apply for probate themselves or they can ask a lawyer (e.g. Vault Legal) to do it for them. Probate is not straightforward and there are a number of steps an executor must take before the court will grant probate, such as:
Where a person dies without leaving a valid will, then they have died ‘intestate’.
If you die intestate you have no control or say over the distribution of your assets. In such circumstances, your assets will be distributed to your family members according to a pre-determined formula set out in the intestacy laws of the state or territory in which you lived at the date of your death or may fall to the state.
As there is no executor of the estate, in order to manage and distribute the deceased’s assets, a family member must apply to the court for Letters of Administration. The court will generally grant a Letters of Administration to the family member who is likely to inherit the largest share of the estate, such as the deceased’s spouse or children.
The process of applying for Letters of Administration is far more expensive and complicated than applying for probate. It is not beneficial to die intestate as it creates uncertainty, may result in distributions to relatives who have no relationship with the deceased and may result in an inheritance dispute.
A will is not legally binding unless all of the proper formalities have been strictly complied with. A valid will must adhere to the following formalities:
While some estate planning providers allow a will to be signed electronically, the Willed Platform does not permit electronic execution of a will as this may invalidate the will because the formality obligations have not been properly complied with. A person who does without a valid will dies intestate.
The Electronic Transactions Act 1999 (Cth) and equivalent State and Territory legislation permit most commercial contracts, agreement and arrangements to be signed electronically, provided certain formalities are met. However, wills cannot be validly signed or witnessed using electronic signatures because the Probate Office of each Supreme Court requires an original (‘wet-ink’) of the will before approving a Grant of Probate.
A willmaker who cannot write because of illiteracy or physical disability can place a mark (such as a cross ‘X’) where he or she would normally sign and the witnesses must state that the mark was made by the willmaker.
Where a willmaker does not understand the English language, a witness should read the will to the willmaker in his or her native tongue in the presence of other witness and the witnesses must state in the will that the willmaker understood and approved of it.
In such circumstances a translation of the will and an affidavit of execution may be required before the court will approve a Grant of Probate. We strongly recommend that you seek legal advice from a lawyer, such as Vault Legal, before signing a will in such circumstances.
Yes, it is possible for couples to have a joint will where the surviving spouse inherits the entire estate when the other spouse passes away. However, joint wills are not preferable because they cannot be revoked by the surviving spouse, regardless of the changed circumstances after the death of his or her spouse. As joint wills are impractical, a better solution is for a couple to make mutual or mirror wills which are separate wills which confer reciprocal benefits upon each other. The Willed platform does not permit a couple to make a joint will.
A will does not expire or lapse; however, generally speaking, a will is automatically revoked when the willmaker marries, unless the will was made in contemplation of marriage.
You should review your will every three to five years, whenever there is a major event in your life or where there are significant changes to the assets and liabilities compromising your estate. For example, you should update your will (by rolling-out a whole new will) in the following circumstances:
For example, if you specify child beneficiaries in your will and you subsequently have children, those newly born children would be excluded from your will.
Marriage will automatically invalidate your will (unless made in contemplation of marriage). Separation from your partner will not invalidate your will. As your will is not invalidated as a result of separation you may find that your former spouse will be entitled to a substantial part of your estate (even if you have already divided your property following your separation).
Depending on the state or territory in which you reside, divorce may automatically invalidate your will or may revoke part of your will (unless made in contemplation of divorce), such as revoking your former spouse as your executor or any distribution of assets to a former spouse.
Whether you are getting married or divorced, you should create a whole new will to reflect your current personal circumstances.
A codicil is a document signed by the willmaker that amends or creates additions to an existing will. Ordinarily, codicil is only used for minor changes such as appointing a new executor or adding or deleting a beneficiary. A codicil can be problematic because:
Generally speaking, it is much better to make a new will. You can use the Willed Platform to create a new will. Given that codicils can be so problematic, Willed does not allow the making of codicils on the Willed Platform.
At law, a will can be challenged after the willmaker dies if:
A willmaker must take particular care when seeking to exclude a spouse, de facto partner or child from their will as it raises the possibility of the will being challenged.
If your financial and personal circumstances are not straightforward, we strongly recommend that you seek legal advice from a lawyer, such as Vault Legal. Such circumstances may include (but are not limited to):
Estate assets pass in accordance with the terms of your will.
Estate assets include those assets held in your name or as tenants in common with another person, such as cash in the bank, shares/units, real estate, life insurance policies and personal property (e.g. as furniture, motor vehicle, artwork, jewellery and pets) owned solely by you or as tenant in common with another person.
Non-estate assets do not automatically pass in accordance with the terms of your will, such as assets held as joint tenants (e.g. real estate held by you as a joint tenant automatically passes to the surviving tenant), superannuation benefits and assets held in a discretionary or unit trusts.
Whether your superannuation benefits will be distributed in accordance with your will, is determined by:
You should contact your superannuation fund to complete a binding death benefit nomination form.
A legacy is a gift of personal property to a loved one or to a charity named in the will, such as money, motor vehicles, shares, collectables, jewellery or art.
Be careful when bequeathing gifts to persons named in your will because:
If you have overseas assets, you should consider either:
Due to the complex nature of estate planning and administration involving several jurisdictions, Willed recommends making separate wills in each jurisdiction to ensure that your will complies with all relevant legal formalities in that jurisdiction rather than an making an international will. Also it is important to ensure that your will in one jurisdiction does not supersede your will in another jurisdiction.
In your will you can detail your wishes in relation to organ donation. However, please note that your funeral wishes are non-binding on the executor.
You should let your executor and loved ones know you are an organ donor because your will may not be opened until after your funeral.
In your will you can detail your wishes in relation to your funeral arrangements. For example, you can instruct your executors to cremate your body and spread your ashes over the ocean. Please note that your funeral wishes are non-binding on the executor and therefore can be ignored. However, it is unusual for an executor to override the willmaker’s funeral wishes.
It is important that you make their funeral arrangements known to their executor and loved ones before you die because your will may not be opened until after your funeral.
A funeral insurance policy gives your family a lump sum payment to pay for funeral expenses when you die. There are lots of pros and cons of funeral insurance; however, if you do take out a funeral insurance policy, let your executor and loved ones know so that your executor can lodge a claim to access the funds necessary to pay for your funeral. Ideally, you should keep a copy of your funeral insurance policy with your will.
Alternatively, you can pre-pay for your funeral and let your executor and loved ones know the details of your pre-payment. Ideally, keep a copy of your pre-payment receipt with your will.
A power of attorney is a legal document that allows an individual (called the "donor" or "principal") to appoint another person (called the "attorney") to make financial, legal, personal and medical decisions for them. There are three different types of power of attorney:
A power of attorney becomes invalid on the death of the donor/principal.
A principal usually appoints an attorney pursuant to a general power of attorney to make financial decisions or transact for them for a limited period of time or when they are overseas, such as buying or selling a property, voting at a shareholders’ meeting etc.
A general power of attorney does not give the attorney the power to make personal, medical or lifestyle decisions on the principal’s behalf. A general power of attorney immediately becomes invalid once the principal loses capacity to make their own decisions or is deemed to be mentally incapacitated.
An enduring power of attorney allows an attorney to make legal and financial decisions for the principal, including when the principal loses capacity to make their own decisions or manage their own financial affairs.
In the absence of an enduring power of attorney, a family member will have to apply to the administration and guardianship tribunal for authority to make financial decisions (called "administration") on behalf of a relative who has impaired decision-making capacity.
Applying for administration can be a complicated and lengthy process and an enduring power of attorney is a useful safety net in the event a mentally impaired person requires their financial affairs to be managed.
An enduring power of guardianship or medical treatment decision maker allows an enduring guardian/medical treatment decision-maker to make personal, lifestyle, and medical decisions on behalf of the principal, including when the principal loses capacity to make their own decisions. For example, an enduring guardian/ medical treatment decision-maker has the capacity to decide where a principal is to live or whether the principal should accept or refuse medical treatment.
In the absence of an enduring power of guardianship/medical treatment decision maker a family member will have to apply to the administration and guardianship tribunal for authority to make personal, lifestyle, and medical decisions (called "guardianship") on behalf of a relative who has impaired decision-making capacity.
Applying for guardianship can be a complicated and lengthy process and an enduring power of guardianship/medical treatment decision maker is a useful safety net in the event a mentally impaired person requires medical treatment.
in Australia
