Guide to Wills: Everything you need to know about writing a Will

If you’re like most people, thinking about the future involves little more than booking ahead for seats at your favourite restaurant. You’re certainly not alone if you find the idea of writing a Will uninviting or just plain unpleasant. Actually, over half of Australians think the same way, and have no plans in place for their families and loved ones when they’re gone.

But a Will is one of the single most important documents you should consider at any age or stage of life. It’s the only way to make sure your wishes are known and that the people you love are taken care of and protected when you’re gone. It’s a means of avoiding hassles and heartache for those left behind.

We’ve put together this easy to follow guide to help you answer any questions you may have about writing your own Will.

A Will, in simple terms, is a legal document that describes what should happen to, and who should be in charge of, your estate after you die. It gives instructions on how you want your assets to be distributed to your family, friends and others (charities, for example).

A Will also allows you to express additional preferences such as who will look after your children, who will take care of your pets and the type of funeral you’d prefer.

While your Will performs the basic function of distributing your assets after you die, the more important role it plays is to provide protection.

Making a legally binding Will is the only way to guarantee your estate and affairs are dealt with exactly as you want when you’re no longer here. It gives you the chance to provide for the people who matter to you (your Beneficiaries) and to appoint an Executor you know and trust to administer the Will.

All adults, whether single, in a de-facto relationship, married or divorced, should consider having a Will in place. Your Will should also be updated when your relationship changes, as marriage and divorce each have important implications for Wills.

Also, because a Will is an individual document, it is generally recommended that both partners have their own individual Wills, rather than writing a joint Will.

It’s even more crucial to have a clear and valid Will in place if you have extensive assets, specific wishes on how you want your property distributed, or in particular if you have children. Having kids means that you need to consider who would look after them if you weren’t around, and how you would provide for their future.

Technological advances have simplified estate planning and made it more accessible to everyone. The result is that there are so many affordable and straightforward Will-making resources to choose from.

Anyone with a computer or smartphone can now have a Will in minimal time and at a fraction of the cost of a traditional Will.

This is great news because having a simple Will is a good idea even if you only have a few assets.

It’s crucial to have a Will because dying without one (called “dying intestate”) means the court in your state or territory will decide how your assets are distributed, who looks after your kids, and who will be appointed as the Executor of your estate.

Without a Will, the Court will use its own rules to distribute your assets

In situations where there is no Will, a court appointed Executor will step in and distribute your assets according to a priority list of people the law considers to be Beneficiaries. The end result may be that your money, property and assets are passed on in a way that you didn’t intend.

In addition, the Probate process changes and becomes considerably more difficult, expensive and lengthy than it is otherwise.

The best way to make sure these important decisions are made by you - and not for you - is to have a proper Will prepared in advance. It will also save your beneficiaries and loved ones lots of stress and financial expense down the road.

Without a Will, the court will make a decision about who cares for your children

In the situation where both parents die without a Will it is open for anyone to apply for Guardianship of children who are left behind.

Of course the court will act in the childrens’ “best interests” when it appoints a Guardian; however, along with other decisions about your Estate, would it be the same choice you would have made? These decisions are often too big to leave to chance, and so a Will should be written to ensure you have certainty over who would look after the kids if you weren’t around.

Without a Will, your legacy is left to chance

With a Will, you can leave meaningful gifts to people you care about and charitable gifts to causes you support. Safewill makes it easy to include bequests to charities as part of your online Will package.

A Will also enables you to give specific instructions about how you want to be remembered. Is an over-the-top funeral not your style? You may prefer your family to remember you by having a joyful wake or a family road trip to your favourite holiday spot. You can use a Will to make your wishes completely clear, and even to set aside specific sums of money for those wishes.

Not having a Will means that you miss an important opportunity to create a legacy and let others how you’d like your affairs handled.

Creating a comprehensive Will depends on your individual circumstances and the structure can vary based on your financial and family situation.

But even the simplest Will can be effective, and including the necessary elements for a valid Will is easy with the right guidance.

To write a valid Will you need to be:

• an adult - aged 18 or over
• of “sound mind” - meaning that you are mentally capable of understanding what you’re doing and what you’re putting in your Will
• not acting under coercion - what you decide to put in your Will should be what you want and not the result of someone forcing you to make a decision.

To write a Will, the main things you need to do are:

1. Specify the basics. You need to make it clear that this is your “Last Will and Testament” and include your full name, address, occupation and the date of the document.
2. Name your Executor(s). Identify and appoint the person who will be the administrator of your Estate. You can appoint more than one Executor (Co-Executors) and an Alternate Executor (in case your first choice is unavailable or dies before you do).
3. List your assets. Everything material that you own, other than property owned as “joint tenants” - which will automatically go to the other joint owner - should be listed to help your Executor identify what makes up your Estate. Not all assets are necessarily dealt with through your Will (for example, superannuation funds or insurance benefits). You should get advice on how to deal with these other assets in your estate plan.
4. Decide who the Beneficiaries of your assets will be. Treat Beneficiaries fairly and equally where possible to avoid a situation where your Will could be challenged.
5. Nominate Guardians for your minor children and discuss your wishes with them.
6. Decide who you’d like to look after your pets and how to provide for them financially. Safewill has special provisions for pet guardians and pet funds as part of the Will you write.
7. Decide whether you want to leave special bequests, gifts or charitable donations in your Will. Safewill allows you to leave either a percentage of your Estate or specific gifts to people and charities you choose.

Executing a Will means making sure your Will complies with all legal requirements so that upon death, it becomes legally binding.

To satisfy the requirements of the law, a hard copy of your final Will should be dated and signed by you, and witnessed by two adults who will also need to sign the Will. You should try to ensure that your witnesses are entirely independent (and so it is generally recommended that your beneficiaries not witness your signing).

By watching you sign the Will, and then signing it themselves in turn, your witnesses are confirming your signature was made in their presence and is genuine.

It’s important that the procedure for signing and witnessing a Will is followed to the letter, because an unsigned Will is not legally valid except in very exceptional circumstances.

Writing a Will is surprisingly easy and with the help of modern technology is something you can do in less time than it takes to get a haircut.

There are a wide range of options, including:

• paper based DIY Will kits from the newsagency or post office
• state or territory Public Trustee offices that provide a DIY or semi-DIY Will service
• consulting a lawyer to take your instructions and write a Will for you
• online Will platforms like Safewill that help you to create, update and store a Will easily and affordably online.

For more information on ways to write your own Will check out our short guide on The Difference between a DIY Will kit and an online Will.

It’s important to update your Will regularly with every significant change in your circumstances that may have an effect upon your Will. The following things will provide triggers for you to consider updating your Will:

• when you get married, divorced, or enter into a de facto relationship
• if you have children
• when you acquire major new property or assets
• if someone you’ve named in your Will (for example an Executor or Beneficiary) passes away, or your wishes about any of these nominations changes.

Safewill has an affordable subscription service that makes it easy to update your Will so that it reflects what’s happening in your life.

Once you’ve put the work in, you want to make sure your Will remains safe and can be found when the time comes.

It should be stored in a safe and secure place, and you should make sure the Executor and Beneficiaries know where it is and can get easy access.

Safewill provides a convenient way to store your Will on its secure online platform.

It’s clear that your Will is super important. But it’s just one part of the bigger picture. You need to plan for life’s “what ifs?” so that when unexpected or unfortunate events crop up, your family will be ready.

You may have business or family interests you want to protect, you might need support to make financial decisions at some point, or you could have specific wishes for medical treatment and care if you’re incapacitated. That’s when it’s important to consider putting other arrangements like the following into place:

• Powers of Attorney
• Enduring Powers of Attorney
• Enduring Guardianships
• Family Trusts.

Check out Safewill’s blog where we have guides to many of these important life planning arrangements.