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The Ultimate Guide to Writing A Will

What is a Will and how do you write one? What are the things you need to include and do you need estate lawyers to ensure it's legally valid? What happens if you don't have a Will, and how do the rules vary for marital status? Our easy to understand guide answers your questions and tells you everything you need to know about writing a Will.

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Wills in Australia

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 family provision plans in place for when they pass away.

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 your assets are held by the people you love, supporting them when you're gone. It avoids hassle, further heartache, and the dreaded estate administration admin and supreme court attendance 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.

What is a Will?

Defining a Will in the Eyes of Estate Law

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

What a Will Covers

A Will is however about more than family provision of assets. It also allows you to appoint guardianship for your children and your pets, as well as provide further information on the type of funeral you'd prefer. It also presents the opportunity to assign a power of attorney, granting enduring power or general power over your estate if you lose capacity in life.

While your Will performs the basic function of distributing your assets after you die, the more important role it plays is to provide protection; for your estate, your surviving spouse, family members and anyone acting on your behalf for medical or financial decisions.

Making a legally binding Will is the only way to guarantee your estate and financial 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. They'll be handling all the documents to deal with your estate; including debt, probate, family provision and letters of administration. They'll even be helping any disputes between intended asset holders before the grant of probate.

Who Needs a 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 relationships or circumstances change, as marriage and divorce each have important implications for Wills.

Family Members - Married or Have Kids?

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. The resulting completed will provides an up to date document, containing further steps for your end of life, and relevant information on how assets should be distributed amongst children and other family members.

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.

If You Have Extensive Assets

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.

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.

Do You Need to Seek Legal Advice?

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. And unlike a traditional will, you no longer need to seek expensive legal advice from a solicitor.

What Happens if You Don't Have a Will?

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.

Dying intestate can have serious implications on the distribution of your estate after your death, as well as drawing out the length of probate and increasing legal costs if children or family are left to hire a solicitor to carry out your wishes and estate administration.

Without a Will, the Court Will Use its Own Rules to Distribute Your Assets

In situations where there is no Will, the supreme court uses an appointed Executor to step in for the administration of your estate. Distributing 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. And meaning that any important person not recognised by the court of the law as a beneficiary, will miss out.

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 valid Will prepared in advance, whilst you still have mental capacity. It will also save your beneficiaries and loved ones lots of stress and financial expense down the road if they have to seek legal advice.

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 make your end of life planning meaningful beyond just seeing your own wishes followed through. Whether it's leaving a gift to a person you care about or to a charity that did something for you, leaving these bequests allows you to establish your legacy with your will.

Safewill makes it easy for the will maker to include bequests to charities as part of your online package. That’s because we believe your will is your opportunity to influence 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. Regardless, your Will represents an important document to make your wishes completely clear.

The flipside of not having a will misses this important opportunity to create a legacy, provide guidance to your executor and make your wills and estate planning meaningful.

How is a Will Structured?

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.

Who Can Write a Will?

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.

Every eligible person is recommended to engage in Wills and estate planning. It'll cover you if you lose capacity, armouring your family with the documents to look after you and your estate. But in addition, it will also make the grant of probate in your death easier, and minimise delays to your estate being distributed amongst your family at this time.

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. Your completed will should include all 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.

How is a Will Executed in the Supreme Court?

Executing a Will means making sure your Will complies with all legal requirements so that upon death, it becomes legally binding. Your executor is the person who will carry out the administration of your estate in the supreme court, and carry out your wishes after your death.

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. You can also appoint substitute executors to double protect your assets in death.

Do I Need Estate Lawyers to Write my Will?

Unlike a few years ago, writing your Will is surprisingly easy with the help of modern technology. It's an all round efficient process; completable in less time than it takes to get a haircut or fly through your favourite Netflix series. The expensive attorney, lawyers and legal advice are out and affordable, accessible and flexible wills and estate planning is in. Here's your options below:

  • Paper based DIY Will kits from the news agency 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. We're experienced wills experts, and also provide expert advice on your wills and estate planning.

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.

How Often Should I Update My Will?

It's important to keep your Will up to date, and update it regularly with every significant change in your circumstances. 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.

Where Should I Store My Will?

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.

We appreciate life can get busy and things can get lost. So we provide a secure online platform to store your will online once it’s completed. It’s easier than lugging paper documents around, and it provides an extra layer of security to the all important wishes your Will outlines.

Why a Will is More Than a Legal Document

It's clear that your Will is super important to ensure your wishes are carried out. But it's more than just a legal document, it’s a part of the bigger picture. It's about planning for life's “what ifs?”, about supporting your family when unexpected or unfortunate events crop up. About preparing for the inevitable. And about doing something selfless, so that when the time comes, your family isn't left with a mess.

Writing your will today takes an active step to help your children, your wider family and your loved ones tomorrow. Preventing a lengthy probate process, or the need for additional legal advice at a later date.

You may have business or family interests you want to protect, you might need support to make financial decisions on how your assets will be distributed across multiple jurisdictions, or you could have specific wishes for medical treatment and care if you're incapacitated. That's why it's important to consider putting other arrangements in place, when you're of sound mind. We recommend considering:

Get Started with Safewill Today

We make it easier, more affordable and more flexible than ever before to write to your Will; helping you to organise all those important and valid legal document with the help of our Wills and estate team, without the hassle or the cost of an estate lawyer.

Whether it's for expert legal advice, compassionate support or just an enquiry, our team is available for support at any time on 1800 103 310 , or via live chat now.

Last updated 16th August 2021
Tali
Tali Weinberg
Head Of Operations
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Safewill is an online service providing streamlined forms and information. Safewill is not a law firm or a substitute for a lawyer’s advice about complex estate planning issues.