Writing a will is a crucial step in ensuring your assets are distributed according to your wishes after your passing. In Australia, certain legal requirements must be met for a will to be valid. Additionally, understanding the implications of family provision claims is essential, as these can challenge the terms of your will if provisions for eligible dependants are deemed inadequate.
Careful will preparation and awareness of potential legal issues can help you create a will that minimises disputes and provides clear guidance for your loved ones.
1. Understand the Legal Requirements for a Will
In Australia, a will must meet specific legal criteria to be considered valid. These include:
- Age and Capacity: The person writing the will (the testator) must be at least 18 years old and have the mental capacity to understand the nature of the document and its implications. Exceptions may apply in special circumstances, such as for individuals under 18 who are married.
- In Writing: A will must be written, either typed or handwritten. Verbal instructions or unwitnessed notes do not typically meet legal standards.
- Proper Execution: The will must be signed by the testator in the presence of two independent witnesses, who must also sign the document at the same time. Witnesses cannot be beneficiaries of the will or the spouses of beneficiaries, as this could invalidate their inheritance.
- Clear Intent: The document must clearly demonstrate that it is intended to be the testator’s last will and testament. Ambiguities in wording can lead to legal disputes.
2. Appoint an Executor
An executor manages your estate, ensuring your will is followed. Their responsibilities include collecting assets, paying debts, and distributing the estate. Choose someone trustworthy, organised, and available, as the role can be complex and time-consuming.
Consider impartiality if your will involves multiple beneficiaries to minimise conflicts. You can appoint a family member, friend, or professional executor, such as a lawyer or trustee company. For large or complicated estates, co-executors might also be an option. Selecting the right executor helps ensure your estate is handled smoothly and in line with your wishes.
3. List Your Assets and Liabilities
Before writing your will, it is essential to have a clear understanding of your assets and liabilities. This ensures that your estate can be distributed effectively and without unnecessary complications.
Common Types of Assets:
- Real Estate: Residential or investment properties.
- Financial Assets: Bank accounts, shares, bonds, and superannuation.
- Personal Items: Vehicles, jewellery, and valuable collections.
- Business Interests: Ownership stakes or partnerships.
Liabilities to Account For:
- Outstanding debts, such as mortgages, credit cards, or personal loans.
- Tax obligations, including unpaid income or capital gains tax.
- Other ongoing financial commitments.
Why It’s Important:
A comprehensive list of your assets and liabilities helps ensure:
- Your debts are cleared before the estate is distributed.
- Beneficiaries receive their intended share without unexpected issues.
- Executors can manage the estate efficiently.
4. Specify Beneficiaries
When writing a will, it is vital to clearly outline who will inherit your assets to avoid ambiguity and disputes.
Types of Beneficiaries:
- Primary Beneficiaries: The main individuals or organisations you wish to leave assets to.
- Contingent Beneficiaries: Those who will inherit if a primary beneficiary cannot.
- Specific Bequests: Particular items or assets, like jewellery or property, allocated to specific individuals.
Important Considerations:zzz
- Use clear, full names to prevent confusion.
- Be mindful of family provision claims, as eligible dependants can challenge the will if they are inadequately provided for.
5. Consider Guardianship for Minors
If you have children under 18, your will should specify who will care for them if you pass away. Choosing a guardian is a significant decision that ensures your children’s well-being and provides clarity for family members.
What to Consider:
- Values and Lifestyle: Choose someone whose values and parenting style align with your own.
- Practicality: Consider their ability to take on the role, including financial stability, age, and health.
- Willingness: Confirm that the person is prepared to accept this responsibility.
Naming a guardian in your will helps avoid disputes and ensures your children are cared for by someone you trust.
6. Include Specific Bequests
Specific bequests allow you to leave particular items or assets to specific individuals or organisations. This ensures sentimental or valuable possessions are distributed according to your wishes.
Examples of Specific Bequests:
- Jewellery, heirlooms, or collectibles.
- Real estate or vehicles.
- Monetary gifts to family, friends, or charities.
Key Tips:
- Clearly describe the item and the recipient to avoid confusion.
- Ensure the asset is part of your estate and not owned jointly or held in trust.
7. Address Superannuation and Life Insurance
Superannuation and life insurance are often significant assets but may not automatically form part of your estate. These are typically distributed according to the beneficiary nominations made with your superannuation fund or insurance provider.
What to Do:
- Check Beneficiary Nominations: Ensure your superannuation and life insurance policies have up-to-date and valid nominations.
- Binding Nominations: Consider making binding nominations to ensure your preferences are followed.
- Coordination with Your Will: Align these nominations with the intentions in your will to avoid conflicts or confusion.
8. Plan for Digital Assets
Digital assets are increasingly important to consider when writing a will. These include online accounts, digital currencies, and any other assets stored electronically.
Examples of Digital Assets:
- Social media accounts, email, and cloud storage.
- Online banking, cryptocurrency wallets, and investment platforms.
- Digital content, such as photos or intellectual property.
How to Address Them:
- Create a secure list of account details, passwords, and instructions.
- Specify in your will who will manage or inherit these assets.
- Ensure your executor or beneficiary has the necessary authority to access these accounts under Australian privacy laws.
9. Account for Changing Circumstances
Life events can significantly impact the relevance and validity of your will. Regular updates ensure it reflects your current wishes and legal obligations.
When to Update Your Will:
- Marriage, separation, or divorce (note: marriage can revoke a will under Australian law).
- Birth of children or grandchildren.
- Changes in assets, such as acquiring or selling property.
- Death of a beneficiary or executor.
10. Understand Will Validity Across States
In Australia, wills must meet similar formal requirements across all states, including being in writing, signed by the testator, and witnessed by two individuals who are not beneficiaries. Key considerations include:
- Marriage and Divorce: In most states, marriage revokes a will unless otherwise stated, while divorce often affects provisions for ex-spouses.
- Family Provision Claims: Dependants can contest a will if they are not adequately provided for.
- Informal Wills: Courts in all states may recognise informal wills if there is clear evidence of intent, though this can lead to costly legal disputes.
What Happens If You Pass Away in Another State?
A will made in one state is generally valid across all Australian states, provided it meets legal requirements. However, differences in probate laws and asset distribution rules may apply. For example:
- Executors may need to apply for probate in the state where you passed away or where assets are located.
- State-specific intestacy rules may apply if the will is deemed invalid.
To avoid complications, regularly review your will to ensure compliance with the laws in your current state of residence or where significant assets are held.
Secure Your Legacy with a Legally Sound Will
Writing a will is a vital step in protecting your assets and ensuring your wishes are respected. By considering key factors such as legal requirements, choosing the right executor, and addressing specific bequests and guardianship, you can create a document that provides clarity and security for your loved ones.
To ensure your will is legally sound and tailored to your circumstances, seeking guidance from an experienced will and estate planning lawyer is highly recommended. At Marc Hardman & Associates, our team is here to assist you with expert advice and support, giving you peace of mind that your estate is in safe hands. Contact us today to get started.
With more than 40 years of experience in the purchase and sale of property and businesses, Marc Hardman and Associates has learned the value of strong partnerships.
Forget the cliches and stereotypes. We’re not what you’d expect from a lawyer.
We’re friendly professionals who will eliminate your concerns, build your confidence, and help you grasp every financial opportunity. From due diligence to fast-tracking contracts of sale, we’ll get the job done.
Marc Hardman & Associates acknowledges the Traditional Custodians of country throughout Australia and their connections to land, sea and community. We pay our respect to their Elders past and present and extend that respect to all Aboriginal and Torres Strait Islander peoples.
With more than 40 years of experience in the purchase and sale of property and businesses, Marc Hardman and Associates has learned the value of strong partnerships.
Forget the cliches and stereotypes. We’re not what you’d expect from a lawyer.
We’re friendly professionals who will eliminate your concerns, build your confidence, and help you grasp every financial opportunity. From due diligence to fast-tracking contracts of sale, we’ll get the job done.
Along with Parramatta and surrounds, we are also available by appointment in Paddington and on the Central Coast.
Marc Hardman & Associates acknowledges the Traditional Custodians of country throughout Australia and their connections to land, sea and community. We pay our respect to their Elders past and present and extend that respect to all Aboriginal and Torres Strait Islander peoples.
