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How to write a will
More than half of all Australians are leaving their assets to chance by not having a will.
By not having a will, more than half of all Australians won’t have a say about where their assets go when they die.
Don’t leave your family’s future to chance. Find out how to setup a will properly
If you die without a will, a court administrator will use a highly impersonal formula to decide who gets what. And there’s a good chance your estate will be divided up in a way that you would not have wanted.
Did you know your de facto partner could be left out of your estate if they don’t meet the state’s rigid definition of a de facto partner?
And if you are single with no kids, your estate will go to your parents. But what if your siblings need it more?
You can ensure your situation is certain by simply creating a will.
Before you begin....
What goes into a will?
Your will is an extremely important document that contains more than just “who gets what”. It contains a number of important final requests including:
- How you want your assets to be distributed and to whom. This is the “who gets what” part, but it can be a little more involved than that. For example, you may decide to set up a trust to hold onto some assets for a while and hand them out at a later date.
- Who will carry out the terms of your will. This is called the executor and it should be someone you trust and who is willing to serve. They will help organise insurance policy payouts, debts, taxes and other financial obligations before distributing your assets according to your wishes.
- Who will be the guardians of your children. If your children are minors, this is an important way to make sure they are placed with someone you trust.
- Your burial and funeral instructions. You can decide what you want done with your body, whether that is to be cremated, buried or donated to science.
What’s not covered by your will?
There are a few asset types that wills aren’t designed to handle. These are:
- Jointly-owned assets. If you own something with someone else, such as a car or a joint bank account, that person will receive the asset after you die.
- Your super. You have to nominate who gets your super through the super itself, but super law only lets you nominate your spouse, de facto partner, children, other dependents or a legal representative such as the executor of your will. So if you want it to go to someone else, you’ll need to nominate your executor as the beneficiary of those funds and then use your will to distribute those funds.
- Life insurance payouts. A life insurance policy is another important way to take care of your loved ones after you die. However, this goes to whomever you nominate within the terms of the insurance policy itself. If you want to include these funds in your will, you can nominate your estate as the beneficiary and then use your will to distribute the proceeds.
- Trust assets. Most trusts are considered separate legal entities and ownership will be transferred according to the trust deed.
Ways to do your will
Writing you will can be as simple or as complex as you make it out to be. In fact, you don’t even need a lawyer to help you write one (however, we would recommend one, especially if you have a large estate). The bottom line is that it needs to follow these guidelines:
- It must be in written format, whether handwritten or typed
- You need to sign it at the end, but it is even a good idea to sign the bottom of each page.
- You need to have two witnesses in the room together with you at the same time to witness you signing the document. These witnesses cannot be listed in the will as beneficiaries.
- The witnesses need to sign the document stating they witnessed you sign it and that you appeared to be of sound mind when you did it.
This means you can handle it in one of three ways:
- Hire a lawyer to help you. This can be your family lawyer, a specialist estate planner or an online on-demand legal service. Your lawyer should know exactly how to guide you through the process including helping you write it and even serving as one of your witnesses.
- Write your will yourself. All you technically need to create your will is to write down your wishes on a piece of paper and sign it in the presence of your two witnesses. If you go this route, using a free online template will help you minimise mistakes
- Buy a DIY will kit. This is basically the same as choice 2, except that these kits will have templates for you to follow and instructions on how to explain your wishes. You’ll still need to sign it in front of two witnesses. You can buy these at your newsagent, bookstore or online.
Since the document needs to be worded as clearly as possible, hiring a lawyer makes a lot of sense for everyone, even if it is just to review your final document after you’ve written it.
How to write a will yourself
As soon as you’re ready to get it all down on paper, here are the general steps you’ll follow when writing your will:
- Look at some examples. There are plenty of example wills online. Reading through some of these will get the wheels turning and help you consider various ways you can structure yours.
- List your assets. Make a list of all your assets, including financial assets and physical belongings. Be sure to include anything with sentimental value even if it is not particularly valuable.
- Think of everyone you may want to include. Before you start divvying things up, think about anyone and everyone you may want to include in your will (including churches, clubs and charities). This will help you avoid forgetting anyone even if you don’t end up including them in the final document.
- Decide who gets what. Make this as clear as possible. Include a detailed description of the asset, the exact percentage the person will get and the person’s name, address and relationship to you.
- List those you are excluding. If you choose to exclude someone, explain clearly why you’ve chosen to do so to avoid legal battles in the future.
- Add any other instructions. This can include who will get guardianship of your children, who will see that the terms of your are followed, who will manage your children’s inheritance and what happens to your body after you die.
- File it away. Put your will somewhere safe and tell your loved ones where they can find it. A will that no one can find is just as bad as having no will at all.
- Update as necessary. There are many reasons you may want to update your will including an increase in assets, getting married, getting divorced, having a baby or experiencing a death in the family.
Extra resources for writing your will (State by state)
As previously mentioned, it is not required that you use a lawyer to help you draft your will (although we would definitely suggest that you do!). If you decide not to use one, there are plenty of resources where you can get some help.
Most states and territories have public trustees who can help you write your will and administer your estate if you make them executor. Here’s where to find out more about your state’s public trustee:
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