| A will, or testamentary disposition, is a written
instruction about what you want to happen to your possessions when you die
and who you want to implement that instruction. It can also include
instructions regarding burial and what should happen to any assets you may
hold on behalf of others as trustee. If you die without a will, you die
intestate, which means your property will be distributed among your next
of kin in accordance with State legislation enacted to cover this
eventuality.
There are other estate planning techniques you can use to transfer at
least some of your property without resorting to a will. For
example:
 | property that is jointly owned in equal shares by 2 or more people
as "joint tenants", such as bank accounts and real estate, automatically
reverts to the survivor(s) when one of the joint tenants dies |
| some contractual arrangements, such as life insurance policies, may
permit the nomination of a beneficiary to receive the benefit of the
contract upon the death of the contracting party |
| a trust can be established while you are still alive, which passes
beneficial ownership of the trust assets elsewhere such that they will
not form part of your estate when you die |
| you can simply gift assets away before you die. |
A basic will must be in writing and should contain:
| the name and address of the person making the will, known as the
"testator", who must be at least 18 years old and have the mental
capacity to make a will |
| a revocation clause, which revokes or rules out all earlier wills |
| the appointment of at least one "executor" (who may be a person or
an organisation) to administer the estate in accordance with the terms
of the will |
| statements that effectively dispose of all of your property to the
"beneficiaries" |
| the date of the will, to avoid possible confusion as to which of
several wills is in fact the last |
| an attestation clause, which provides for the will to be executed or
signed by the testator in the presence of 2 witnesses, who must be over
the age of 18 and should not be beneficiaries or the partners of
beneficiaries under the will, and who must also sign. |
The executor(s) will usually be one or more of the beneficiaries under
the will, and more often than not they will be family members. To
ensure that they are willing to do the job, ask them. You can
appoint a public trustee or trustee company as your executor, or as a
substitute executor if your nominated executor dies before you or is
otherwise unable to perform the role, but you should be aware that they
charge a commission which can be several percent of the value of your
estate. You can find links to the various State and Territory public
trustee websites below.
You should store the original will in a safe place and keep a copy
where it can be easily located by your executor.
Be sure to review your will from time to time. Circumstances and
relationships change, so a will can easily get out of date and no longer
reflect your intentions. Both marriage and divorce can have a big
effect on a will, so it may be a good idea to make a new will in either
circumstance.
It is not a good idea to try to alter a will by hand. You can
change your will at any time by way of a further document called a
"codicil", or better yet by making a new will and revoking your earlier
will. To avoid possible future confusion, or even fraud, it is a good idea
to destroy any out of date wills and codicils.
A will may be challenged if:
| it was incorrectly signed |
| it has been tampered with |
| the testator did not have the mental capacity to make it |
| the testator was pressured to sign the will by others |
| the testator did not make "adequate and proper" provision for his or
her dependents. |
In some situations, State legislation has eroded the general principle
that you have a right to give your estate to whoever you like. This
is usually where the testator is found to have failed to make adequate
provision for someone they were responsible for, such as children or their
spouse or de-facto partner.
Many of the law firms in our Law Firm
Directory will be able to assist you with will and estate planning
matters.
The Australian Will Registry (Awillr)
website is a good place to start for more information about all aspects of
wills and planning ahead for incapacity and passing away.
The following links may also be useful:
Will Kits and Online Wills
Legal Information about Wills
Public Trustees
Other
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