Creating a Will in Australia: A Step-by-Step Guide
Creating a Will in Australia is a big responsibility, and one most of us put off for far too long. We've set up this guide to help guide you through the process from start to finish; whether you're just starting out and don't really know what a Will does, or how to do a Will, or you're looking to update your estate plan, this article is packed full of tips and tricks to make writing your Will a less daunting prospect.
Getting started creating a Will in Australia
Firstly: what even is a Will?
A Will is a legally binding document that states how you want to distribute your estate after your death. Creating a Will in Australia allows you to specify who will receive your assets, as well as who will care for your children or dependents, what your funerary wishes are, and what happens to your digital presence. A Will can ensure your legacy is remembered beyond your immediate circle of family members and loved ones.
But do I really need a Will?
Yes, beyond a doubt. If you have any assets, or minor children, a pet, or even just a passion for helping others, creating a Will in Australia is a vital part of planning for your end-of-life.
Understanding the legal requirements for creating a legal Will in Australia
Let’s be honest- laws can be confusing and convoluted, which is why most of us don’t learn all the ins and outs. Acknowledging that having a basic understanding of the legal system and the laws that govern us as a society can be beneficial in various aspects of our lives, particularly when creating your own Will.
To make sure that your Will is legally valid, it must meet certain requirements; while these requirements are generally the same Australia wide, there may be specifics you need to be aware of for your State or Territory. To create your Will in Australia and it be legally valid, the following are musts:
You must be of sound mind when making the Will, meaning you understand what you’re doing and the implications of your decisions.
The Will must be in writing and signed by you in the presence of two witnesses (who are not beneficiaries) over the age of 18.
The witnesses must also sign and date the Will in the presence of you and each other. This confirms they witnessed you signing it voluntarily.
To check specific requirements for your State or Territory, follow the link below.
NSW | QLD | VIC | WA | SA | NT | ACT
The importance of being accurate in your Will
A Will in Australia determines how your assets are distributed, and your final wishes carried out; it can also be emotionally exhausting, as nobody likes to contemplate the world carrying on after they’re gone.
The biggest key to creating a Will in Australia is ensuring its accuracy. Carefully consider and record your intentions, so that your Will accurately reflects your wishes. Mistakes or errors in your Will can lead to confusion, disputes, emotional distress and, potentially, legal issues for your loved ones to deal with after your passing.
Avoiding these issues is relatively easy: take the time to review and double check the information you include in your Will, and seek professional guidance if necessary, especially if you have complex estate issues.
Online Wills: streamlining the Will-making process
Ready to create a Will in Australia?
For those with simple estate matters, who probably don’t need a lawyer drafted Will, you have the option of using an online Will platform like Safewill, or using a DIY Will kit. Both aim to streamline the Will-making process and make it convenient and affordable for the Will-writer.
One major benefit of an online Will is the ability to update and change your information and wishes whenever you’d like, especially after major life events like marriage, divorce, or the birth of new children; as well as the safe and secure storage of such an important legal document.
A traditional DIY Will may never be looked at by a lawyer; with Safewill, each online Will is reviewed by a real Australian law firm to ensure it's filled out correctly. Whichever option you choose, accuracy and attention to detail are critical to ensuring the validity of your Will.
Crafting your Will: a step-by-step plan for beginners
It can feel overwhelming to start creating a Will in Australia, especially if you have large or complex estate matters and don't know where to begin; but breaking it down into steps can make the process easier and less emotionally exhausting, giving you the breathing room to make sure your legacy is as encompassing as you like.
Planning and creating a Will in Australia:
Gather all necessary information about your assets, beneficiaries, and other important considerations, like debts, liabilities, superannuation, etc.
Decide on the distribution of your assets and who will receive them, including specific bequests to individuals or charitable organisations.
Choose an Executor (and alternate Executor, in case the first predeceases you) for your Will.
For minor children or dependents, nominate a Guardian or Guardians, and outline any wishes for their future.
Write out your Will using clear and concise language, including any specific instructions or wishes (such as wishes for pets, social media accounts, funerary arrangements, etc.)
Sign and date your Will in the presence of two witnesses who are not beneficiaries.
Have your Will stored in a safe and accessible place.
Remember to update your Will regularly, particularly after life changes such as the birth of children, or divorce.
Does your Will reflects your correct financial circumstances?
Include every asset that is under your name when creating your online Will, so that your financial circumstances are accurately reflected.
Allocating your assets: a guide to inclusion in your Will
Consider where and to whom you’re leaving your assets. Assets include property, investments, bank accounts, and any other valuable possessions or personal effects.
Take the time to fully evaluate your assets and belongings so you can determine how you want them distributed among your beneficiaries. By leaving a bequest to charity or an organisation that is close to your heart, you can ensure you're being remembered for the right reasons.
Seeking professional legal advice can help ensure that your Will accurately reflects your financial situation and intentions, particularly if you have complex estate needs or have questions not easily answered with your own research.
Choosing the right person to be your Executor
Selecting an Executor is one of the most important decisions you’ll make when creating a Will in Australia. The Executor's responsibilities include applying for probate, administering your estate, and ensuring your wishes are correctly carried out.
Choose someone you trust and who you think can handle the responsibilities involved, as an Executor will need to be capable of completing a large amount of admin work and set aside emotional investment to fulfil the role. Make sure you discuss your decision with your chosen person beforehand; in some cases, it's a good idea to designate a backup Executor, in case the first predeceases you or declines to accept the position.
Things to avoid when writing your Will
Before you create your Will, it's important to be aware of some common mistakes and misconceptions people make. Some common pitfalls to avoid include:
Not updating your Will regularly.
Failing to consider your digital assets, such as online accounts, social media, or cryptocurrency.
Neglecting to include specific instructions for unique or sentimental assets.
Improperly executed signatures, either yours or your witnesses.
Updates and revisions: keeping your Will current
Keep your Will updated regularly, especially during major life events like marriage, divorce, or the addition of new children into your life. Ensuring that your wishes are current can help to avoid familial conflict or disputes over your Will once you have died.
Inheritance Tax insights: what you need to know
Inheritance tax, also known as estate tax, is a tax imposed on the transfer of assets after a person's death. As stated on the Australian Taxation Office website:
There are no inheritance or estate taxes in Australia. However, you may have tax obligations for the assets you inherit:
capital gains tax may apply if you dispose of an asset inherited from a deceased estate
income tax applies as usual to any dividends or rental income from shares or property you inherited.
For a full and in-depth explanation on how tax works for deceased estates, please check out the ATO information page here.
How to think about digital assets in your Will
We’ve all heard the saying ‘once it’s online, it’s there forever’, which is a scary sentence when you think about the end of your life and the digital footprint you're leaving behind.
It’s important to consider what you want done with your online presence when you pass away. Digital assets include things like online accounts, social media profiles, and digital files uploaded to cloud networks.
Keep a record of all of your digital assets, along with instructions on how to access them, in your Will; make sure you state what you want done with them, so your Executor can carry out your wishes.
Making an informed choice about seeking professional guidance
Deciding whether to seek professional legal advice or create your own Will is an extremely personal choice, and not one that you should rush.
Using an online Will-writing platform or DIY Will kit can be a cost-effective option, but it’s important to consider the complexity of your estate needs and potential legal issues before you decide against legal advice.
Complex estates or unique circumstances may benefit from the expertise of an estate planning lawyer or legal professional. They can provide personalised advice and guidance while ensuring that your Will meets all legal requirements.
Witnessing and signatures: a legally valid Will
A Will needs two things to be valid: written by someone with testamentary capacity (aka you understand what you are doing, why you are doing it, and to whom you are leaving things), and then signed by that person in the presence of two witnesses who must also sign the document in the presence of you and each other.
The bare minimum to ensure a Will is valid is to have two people you trust come over and have a cuppa while they watch you sign your name, and then they do the same thing.
*Note: some States/Territories require that each page of the Will document be signed and dated; if you’re not sure if that includes your home State or Territory, check the specific requirements on the Government website for your home.
Writing your Will to suit your unique financial circumstances
When you're writing your Will, you’re not just deciding which pieces of your life get shared amongst your loved ones- you’re leaving behind something meaningful for the people and causes you value. Think about all the elements involved, like the size of your estate, and any specific financial considerations, like tax owed or debts outstanding, and consider each part of your life – your home, investments, savings, and even personal items.
Taking the time to evaluate your financial situation critically. Getting advice from professionals can be incredibly helpful, especially if your finances are complicated. Whether you're dealing with debts, thinking about giving to charities, or just need some guidance, seeking professional guidance if you have complex estate matters can help you make informed end-of-life decisions and create a Will that safeguards your legacy appropriately for your financial circumstances.
Your finances are as unique as you are, and your Will should reflect that to ensure a legacy that isn’t just preserved, but actively makes a positive impact on the people around you
How to include everything (including the kitchen sink) in your Will
Including all your assets in your Will is key, so that nothing is overlooked or left out. Make a comprehensive list of all your assets, including property, vehicles, bank accounts and investments, digital assets and personal belongings, and triple check it before beginning the Will-writing process. Include all of your non-physical assets, like bank accounts, as these won't be automatically protected by your Will.
Consider seeking professional advice to make sure that you have included and accounted for all your assets, and divided them appropriately in your Will.
Your Will, your way
The Will-writing journey is incredibly personal, and can be a hard thing to start when you’re feeling overwhelmed.
With so many Australians without a Will, you could be forgiven for thinking it’s something to do later. But the future comes when we least expect it, and having a plan for your loved ones to follow can help you let go of some of those fears and concerns, and enjoy the today you have.
Safewill lets you decide how your legacy stays behind- write your Will online today, or contact us any time via live chat.
If you prefer to speak on the phone, you can call us on 1800 10 33 10.
Frequently asked questions
How does an online Will differ from a traditional DIY Will kit?
An online Will allows you to create your Will digitally using an online platform. It provides convenience and the freedom to complete the Will-writing process from anywhere, anytime.
A traditional DIY Will kit involves using paper-based forms and instructions to create your Will manually.
Both options have pros and cons, so it's important to evaluate which approach best suits your individual needs.
How long does it typically take to craft a valid Will?
The time it takes to create a valid Will can vary depending on individual circumstances, but for simple estate needs, you can create your Will online with Safewill in as little as 20 minutes.
Individuals with complex estate needs or unique circumstances may require more time or additional legal advice.
What are the essential elements my Will should include?
Your Will must include these important elements:
Clear identification of the testator (you, the person creating the Will) and their intent to create a Will with testamentary capacity.
Appointment of an Executor.
Distribution of assets and specific bequests, such as gifts to charity.
Plans for beneficiaries who may predecease you.
Wishes for funeral arrangements (if desired).
Witness signatures and acknowledgment of their presence during the signing.
Can I update or revise my Will after it's been created?
Yes! We recommend you update your Will after any major life changes. Regularly reviewing and updating your Will ensures that it accurately reflects your current wishes and circumstances.
What financial circumstances should I consider when making a Will?
Consider your unique financial circumstances comprehensively when making a Will. This includes evaluating the value and nature of your assets, any outstanding debts or owed tax, and your overall financial objectives.
Seeking professional advice can help you navigate complex financial matters and ensure that your Will aligns with your financial goals.
Do I need legal assistance to create a valid Will?
While legal assistance is not mandatory to create a valid Will, seeking professional advice can provide valuable insights and ensure that your Will meets all legal requirements, especially if you have a large or complex estate. Estate planning lawyers can guide you through the process, help you navigate potential issues, and provide peace of mind that your Will is legally valid.