Frequently Asked Questions
If you fall in any of these categories it may be time to consider a Will:
Aged 18 years or older
have children
own an asset of value e.g. house, car, etc
have been recently married, engaged or divorced
have experienced a major event that affects your life
want to ensure that your estate is distributed fairly
Then you should have a legally binding Will in place to ensure your estate is secured.
If you do not have a Will, then you will die “intestate” meaning that your assets will be distributed according to a Government formulae and you will need to apply to the Supreme Court to appoint an Administrator.
A Will is a legal document setting out who you trust to administer your estate and who will receive your assets when you die. A Will is the only way to ensure that your assets are distributed according to your wishes and to ensure that your family’s needs are met.
Each State and Territory of Australia has legal requirements (set in statute) which if followed correctly will ensure that a Will is “legally binding”. If a Will is not legally binding then it has no force or effect at Law.
Some things that make a Will binding is the form of the Will, the signing clauses, and the witnessing requirements.
If you die without a Will you die "intestate". Essentially this means that in the event of your death:-
Your family will have to apply to the Court to appoint an Administrator of your Estate (incurring considerable costs).
Your assets will be distributed according to a Government formulae, i.e. certain family members will receive a defined percentage of your assets. Unless you have a Legal Will, despite your wishes, your Estate will be distributed according to the Government formulae.
If you have no surviving relations beyond cousins then your estate will pass to the Government.
Simply by making a legally valid Will.
Yes, you can change your Will as often as you like. Your Will becomes invalid upon the making of a new Will. In fact, our templates specifically revoke any previous Will.
If you do not have a Will, or if you have not included your spouse in your Will prior to marriage, then the marriage itself will invalidate your Will. Unless your Will is made in contemplation of marriage, you must draft a new Will upon marriage as anything prior will be invalid.
If you obtain an order for divorce from an Australian Court then your existing Will becomes invalid to the extent that your former spouse obtains a benefit. Your Will is valid if you have separated but not obtained a divorce.
Upon separation you should immediately draft a new Will.
You can leave your assets to a person, group of people or an organisation (which includes charities).
We recommend you keep it in either a fireproof safe or with your trusted accountant. Make sure you let your Executor/s know the location of your Will. Always have a copy of the Will with your important papers noting where the original is being kept.
We recommend you update your Will whenever you experience a major life changing event or something happens to someone listed in your Will e.g. Relationship Breakdowns, Death, Marriage, etc.
Your will does not have an expiry date.
Yes you can, but these circumstances can become complex. We suggest you consult your local solicitor if you intend to exclude a child from your Will to ensure your options are thoroughly covered.
In all Australian jurisdictions (States and Territories) someone must be appointed to attend to the administration of the estate of a deceased person. If that person is appointed by your Will then they are known as your “executor”. Their task is the “execution and administration” of the Will
Anyone can be appointed as an executor of the Will provided that they have the ability to give an oath to the court. Some people may be unsuitable as executors, for example, if they have not reached his or her age of majority (under 18), are absent from the jurisdiction, have mental incapacity, bankruptcy, or dissolute habits.
You can appoint as many executors as you like to administer your Estate. It is recommended however that you do not appoint any more than three (3) persons as any more may make the administration of your estate cumbersome. Our Will template provides that if there is more than one executor then they make their decisions by a majority.
Executors are also referred to as your “Legal Representative” or your “Personal Representative”.
Substitute Executors are nominated in the event your nominated Executors all pass before you. When this occurs the Substitute Executors will step in to the Executors role.
It is the executors who have the right and are subject to the duty to dispose of the testator’s body. Please note however that the direction is not binding on the executor. You should appoint executors who are sympathetic to your wishes and you should ensure that they are aware of those wishes in good time as sometimes body directions are not known as the will may not be read before the funeral.
Our Will templates allow you to make a direction that your body be either, buried, cremated, or used for scientific purposes and allow you to nominate for organ donation.
You can gift specific items to your beneficiaries pursuant to your Will. Caution however must be taken with giving specific gifts. If, for example, you gift an item of personal property and that property is subsequently disposed of during your lifetime, then the gift will fail.
If the gift is disposed of and replaced before the your death, your beneficiary may receive nothing if there was an ademption or, worse, with a difficult problem of construction of the Will if it is not clear whether there was an ademption or not. Shares, for example, are vulnerable if there is a company restructure. You must make every effort to ensure that the subject matter of the gift is accurately and sufficiently described.
A beneficiary is someone who inherits an item in the Will. A beneficiary can be a person, group of people or an organisation. The executor of your Estate has a duty to inform your beneficiaries of the nature and extent their entitlement under the Will.
Many beneficiaries still mistakenly assume that they should be invited to a “reading of the Will” just like in many old movies, this is not a legal requirement.
A beneficiary can be a person, group of people or an organisation (including charities), the choice is yours.
You may have provisions in your Will for a Substitute beneficiary to take place in this event, otherwise you may wish to consider updating your Will.
A Substitute Beneficiary determines what happens with a Beneficiaries share of your estate should they not survive you.
Yes you can. Using our Will template you may wish to exclude one or more persons from your Will. You should consider legal advice if you are concerned that you have a relative, spouse, former spouse, de facto spouse, partner, domestic partner, past or present dependant or any other person who might be eligible to make a claim out of your estate
If you decide to exclude someone from your Will then you must ensure that you record in our Will template detailed reasons why that person should be excluded.
If you have superannuation then you are a member of a superannuation fund. Superannuation cannot be distributed pursuant to your Will as technically you do not own the superannuation benefit, you are a beneficiary of the fund which is disbursed by the Superannuation Trustee in accordance with the terms of the Superannuation Deed. You must therefore check with the Superannuation Trustee of the fund to ensure that you have nominated a person to receive your superannuation entitlements upon your death.
Generally, you may elect with your Superannuation fund to make either a Binding or Non-Binding nomination of beneficiaries to whom your accrued superannuation entitlements will be paid in the event of your death.
A Non-binding nomination of preferred dependents is not binding on the Superannuation Trustee, but will assist the Superannuation Trustee in exercising its discretion. The Superannuation trustee will determine what proportion of your entitlements goes to one or more of your dependants or your legal representative on your death. Unless the Superannuation Trustee decides to pay the benefits to your estate, your entitlements will not form part of your estate and will therefore not be subject to the terms of your Will.
A Binding nomination of dependant(s) or your legal personal representative(s) will bind the Superannuation Trustee to pay your entitlements on your death exactly as you specify. Your nomination will only be binding if it is made in accordance with the relevant requirements of the Superannuation Deed. You are able to nominate both individual beneficiaries and your legal personal representative(s) in whatever proportions you may choose. Thus you may choose beneficiaries outside of your Will or choose the beneficiaries named in your Will by nominating your “Legal Representative”.
Note that the term “dependant” is generally defined as:
the spouse of the person, any child of the person and any person with whom the person has an interdependency relationship at the relevant time (being in the case of a deceased person the date of their death); and
any other person who in the opinion of the Superannuation Trustee is at the relevant time (being in the case of a deceased person the date of their death) wholly or partially dependent on the person.
Two persons have an interdependency relationship if:
they have a close personal relationship; and
they live together; and
one or each of them provides the other with financial support; and
one or each of them provides the other with domestic support and personal care.
Two people have an interdependency if they have a close personal relationship but do not satisfy the other requirements of an interdependency relationship because either or both of them suffer from physical, intellectual or psychiatric disability. You will need to refer to your superannuation fund in relation to the above.
To be on the safe side however, we suggest that you give a direction in your Will in relation to the disbursement of the superannuation. The direction pursuant to the Will is not binding on the Superannuation Trustee.
Every State and Territory throughout Australia gives each parent the right to appoint a guardian or guardians by will or deed to act after his or her death. You should ensure that you communicate with the other parent of the children to make sure that the guardianship arrangements for the children are co-ordinated.
You can appoint either a single guardian or joint guardians (2 people) through our legal Will kit
A Guardian should be someone you trust and knows how you wish to have your children raised. It is a good idea to contact the people you have chosen as Guardians to discuss their appointment in your Will.
If you are appointing more than one guardian then you should consider whether or not a conflict may develop between the appointees.
Yes you can make a donation to a range of charities in your Will.
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