Sydun & Co Solicitors

Ultimate Guide to Wills: How to Make a Last Will & Testament

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Are you wondering what a will is and how to write one? If so, this guide has got you covered. We’ll define a will, as well as what should be included in it, and whether you need a wills and estates lawyer to ensure its legal validity. 

Moreover, we’ll also discuss the consequences of not having a will and how the rules vary depending on your marital status.

What is a will?

In Australia, a will is a legal document by the deceased that outlines how his or her assets and liabilities are dealt with after their death. A will appoint a person or persons to act as the executor of the estate and carry out the deceased person’s wishes according to the terms of the will. The executor is the personal legal representative of the deceased. In that role, the executor seeks Court approval of the will, a process known as probate of the will.

For a will to be considered valid and capable of a grant of Probate in Australia, the document must meet certain legal requirements. And that’s where the expertise of a wills and estates lawyer comes in. 

For example, the person creating the will (known as the testator) must be deemed of sound mind and have the capacity to understand the nature and effect of their actions when making the document. 

In addition, the will must also be in writing, signed by the testator, and witnessed by two people who are not beneficiaries under the will.

As a general rule, a will deals with assets within the jurisdiction being the state or territory. It cannot deal with assets in a foreign jurisdiction with limited exceptions.

As wills can differ between Australian states and territories, it is recommended to seek legal advice from wills and estate or property lawyers in Sydney when drafting or updating a will. 

Who Needs a Will and Why?

In Australia, anyone over the age of 18 years who has assets and belongings they wish to distribute after their death should consider creating a will. 

Importantly, having a will ensures that your assets are distributed according to your wishes and can help to prevent disputes among family members or loved ones after your death. A wills and estates lawyer ensures that your will is drafted in a legally correct way. 

If you die without a will (technically known as dying intestate), your valuable assets will be distributed according to a statutory legal formula that may not reflect your wishes or the needs of your loved ones. 

For example, if you have a spouse and children, your assets could be split between them in a way that you may not have chosen. In some cases, this can lead to financial difficulties or even legal disputes among family members.

Having a will also allow you to appoint an executor to manage your estate and carry out your wishes according to the terms of the will. This can provide peace of mind and ensure that your affairs are handled in a timely and efficient manner after your death.

Furthermore, it’s important to review and update your will regularly with the help of a property lawyer in Sydney, especially after major life events such as marriage, divorce, the birth of a child, or the acquisition or sale of significant assets. 

Doing so can help to ensure that your wishes are always up-to-date and precisely reflected in your will.

How to Get Started on Writing Your Will?

Getting started on writing a will in Australia can seem overwhelming, but it’s an important step in ensuring your assets are distributed according to your wishes. Accordingly, it is recommended to seek the legal advice of a wills and estates lawyer. 

Here are some practical steps to help you get started:

  • Take inventory of your assets: Make a list of all your assets, security and/or account identification numbers and their approximate values, including real estate, bank accounts, investments, shares, vehicles, personal possessions, and any other assets you want to distribute in your will. 
  • Choose your beneficiaries: Decide whom you want to receive your assets after your death and in what proportions. You may want to consider factors such as your family structure, the needs of your beneficiaries, and any special circumstances that may affect how you distribute your assets. If you’re unsure how to choose your beneficiaries, consulting a property lawyer in Sydney can help you navigate through this phase easily. 
  • Choose an executor: Choose someone you trust to act as the executor of your estate and make sure they are willing to take on this responsibility. The executor will be responsible for managing your assets and distributing them according to the terms of your will.
  • Seek legal advice: Consider seeking legal advice from a solicitor or wills and estates lawyer to help you draft your will and identify your assets as opposed to those assets you might have created but are not owned by you including companies, trusts and SMSF. A good Estates lawyer can help with your financial planning for assets outside your will and can ensure that your will meets all the legal requirements and is tailored to your specific needs and circumstances.
  • Write your will: Once you have gathered all the necessary information and sought legal advice, you can begin drafting your will. Be sure to include all the necessary elements, such as your name, as well as the names of your beneficiaries and executor, your assets and liabilities and the planned distribution of your assets. Here the legal expertise of a property lawyer in Sydney becomes crucial. 
  • Sign and witness your will: Once your will is complete, it is necessary to sign it in the presence of two witnesses who aren’t beneficiaries under the will. The witnesses must also sign the will, acknowledging that they witnessed your signature.

When Should I Make or Update My Will?

It is important to make a will as soon as you have assets and/or dependents that you would like to leave your estate to in the event of your death. If you already have a will, it is recommended to review and update it regularly with the help of a wills and estates lawyer to ensure it reflects your most recent wishes and circumstances, particularly if there has been a significant change in your assets.

Here are some circumstances that may require you to update your will:

  • Major life events: Major life events such as marriage, divorce, birth or adoption of a child, or the death of a beneficiary or executor may require updates to your will.
  • Changes in financial circumstances: If you acquire or dispose of significant assets or liabilities, it may be necessary to update your will to reflect these changes.
  • Changes in relationships: If your relationships with your beneficiaries or executor change, or if you want to add or remove beneficiaries, you may need to update your will.
  • Changes in laws: Changes to estate planning laws or tax laws may require updates to your will to ensure that it is compliant with the latest legal requirements. A property lawyer in Sydney can give you updates and legal advice on how to modify your will according to the new laws. 

How to Execute a Will?

After a person’s death, their will must be executed in accordance with the legal requirements in Australia. Here are the general steps involved in executing a will:

  • Obtain the original will: The executor of the will or a family member of the deceased must obtain the original will. If the will was stored with a wills and estates lawyer, it may need to be collected from their office.
  • Apply for a grant of probate: The will executor needs to apply for a grant of probate from the Supreme Court of the state or territory where the deceased lived. This is a legal process that confirms the validity of the will and gives the executor the authority to administer the estate. The wills and estates lawyer can guide you through these processes.  
  • Notify beneficiaries: Once the grant of probate has been issued, the executor must notify the beneficiaries named in the will of their entitlements. 
  • Manage the estate: The executor is responsible for managing the deceased person’s assets, paying any debts and taxes owed by the estate, the sale and transfer of assets in order to distribute the assets to the beneficiaries in accordance with the will. During this phase as well, the assistance of an estates lawyer who is also a property lawyer in Sydney is necessary to avoid complications. 
  • Finalise the estate: Once all debts and taxes have been paid, the executor can distribute the assets among the relevant beneficiaries in accordance with the will.

How do I Revoke my Will?

To revoke a will in Australia, you have several options. Here are some common ways to revoke a will:

  • Make a new will: One way to revoke a will is to make a new one that replaces the previous will. The new will must clearly state that it revokes all previous wills and testamentary dispositions.
  • Physically destroy the will: You can revoke a will by physically destroying it. This can be done by burning, tearing, or otherwise destroying the original will with the intention of revoking it.
  • Sign and date a revocation document: You can also sign and date a revocation document that clearly states that you are revoking your will. This document should be kept with your other important documents and clearly indicate that it is a revocation of your will.
  • Get married: If you get married after making a will, your will is automatically revoked unless it was made in contemplation of marriage.
  • Upon divorce: Except in the Northern Territory and Western Australia, divorce automatically revokes a will, either entirely or partially, in all Australian states and territories. 

It’s important to note that revoking a will can have significant consequences, and it’s recommended that you seek legal advice from property lawyer in Sydney before taking any action to revoke your will. 

What are the Laws of Intestacy in Australia?

The laws of intestacy in Australia are the legal rules that apply when a person dies without a valid will or with a will that does not dispose of all their assets. These laws vary slightly between different states and territories but they generally follow a similar framework.

Under the laws of intestacy, the deceased person’s assets are distributed to their surviving family members in a predetermined/pre-formulated order of priority prescribed by legislation. 

This typically starts with the spouse or de facto partner of the deceased, followed by any children, parents, siblings, grandparents, and other more distant relatives.

If the deceased individual is survived by a spouse or de facto partner and children, the assets are usually divided between them. The exact distribution depends on the state or territory and the specific circumstances of the case.

If the deceased person is not survived by any family members, their assets may be transferred to the state government.

It’s important to note that the laws of intestacy may not reflect the wishes of the deceased person, and assets may be distributed differently than they would have been under a valid will. 

Thus, it is crucial to make a will with a legal consultation from a wills and estate lawyer and keep it up-to-date to ensure that your assets are distributed among the relevant people and entities according to your wishes.

How to Nominate an Executor for Your Will in Australia?

To nominate an executor for your Will in Australia, you should follow these steps:

  • Choose a trustworthy and capable person: Select someone you trust to carry out the responsibilities of an executor, such as managing your estate, paying debts and taxes, and distributing your assets to beneficiaries.
  • Discuss your wishes with the nominee: Talk to your chosen executor about your wishes and ensure that they are willing to take on the role. Explain what their responsibilities will be and ensure they understand the legal requirements.
  • Name the executor in your will: This should be done in a clear and unambiguous manner, stating their full name and their relationship to you.
  • Provide detailed instructions: Define how you want your estate to be managed and distributed. You can consult a property lawyer in Sydney to streamline the process of nominating an executor. 
  • Consider appointing a backup executor: It’s also a good idea to nominate a backup executor in case your primary choice is unable or unwilling to act.
  • Seek legal advice: It’s recommended that you seek legal consultation from a wills and estate lawyer to ensure that your will and nomination of an executor are legally valid and enforceable.

Challenging a Last Will

In Australia, it’s possible to challenge a last will, but the process can be complex and difficult. Therefore, acquiring the expertise of a wills and estate lawyer is crucial. A will may be challenged on a number of grounds, including the following: 

  • Lack of capacity: If the testator (the person making the will) did not have the mental capacity to make a valid will at the time it was created, the will may be challenged on the grounds of testamentary incapacity.
  • Undue influence: If it can be shown that the testator was coerced or unduly influenced by another person when making the will, it may be invalidated.
  • Fraud or forgery: If the will is found to be fraudulent or forged, it may be challenged.
  • Technical defects such as improper execution of the Will. Increasingly the Court will look to give effect to the wishes of the deceased and ignore defects of this nature provided an explanation is given. 

Wrapping Up

It is crucial to ensure to select and hire an experienced and reliable wills and estate lawyer who can help you understand your legal rights, advise you on the best course of action, and guide you through the legal process in order to help you navigate this process in a smooth and efficient manner.

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