How to write a will in Australia
Make sure your assets are protected by having a will.
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Having a will means that if you pass away, there are clear instructions for your loved ones to follow about how to handle your assets. It's often an uncomfortable subject, but it's the best way to make sure that your finances are handled properly and according to your wishes should the worst happen.
In this guide, we take you through why a will is important and the steps you can take to make sure you have one in place.
How to write a will
A will can be simple or complex depending on the size of your estate and the complexity of your wishes. You don't always need a lawyer to help you write one either. However, in order to make the process as simple as possible and leave nothing to chance, it's always advisable to consult one, especially if you have a large estate).
Ultimately, for your will to be valid, it should 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.
Create a will with a lawyer or online legal service
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.
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.
What happens if I die without a will?
If you die without having a will, you're classed as having died intestate. Intestacy means assets and possessions are distributed by the government in a specific order. It can also sometimes apply in situations where there is a will, but it doesn't cover the entirety of your assets. This is the same across all states, including NSW and Victoria.
The general inheritance order, in relation to the deceased, is as follows:
- Spouses (or de facto partners)
- Grandchildren or great-grandchildren
- Nephews and nieces
- Uncles and aunts
- First cousins
- Anyone else that the court may appoint
Generally, once one of the above levels is able to inherit, then the whole intestate estate will go to that level. Assets can be divided among a wide range of extended family members up to first cousins. If no family is found, then the state may inherit the amount.
Special conditions also apply to the first two stages, with provisions for dividing amounts between them or between multiple partners. For example, the following rules often apply.
- Estates valued under $150,000. If the intestate assets are worth less than $150,000, excluding personal possessions, the spouse/partner may inherit it all.
- Estates valued over $150,000. If the intestate assets are worth over $150,000, excluding personal possessions, then the spouse/partner may inherit the first $150,000 and either half or a third of the remainder.
- With one child. The spouse/partner may inherit half of the remainder, while the child (or grandchild, as applicable) gets the other half.
- With more than one child. The spouse/partner may inherit a third of the remainder, with the other two-thirds being divided among all the children (or grandchildren, as applicable).
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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