1. Do I need a Will?
Everyone over the age of 18 should have a Will. If you do not have a Will, your assets may end up with someone you did not want to benefit. Intestacy laws will govern the distribution of your assets – i.e. the order in which your eligible spouse or relatives will inherit your Estate.
In NSW, for example, if you die with a new partner and you have children from a previous relationship, then your Estate will be divided between your new partner and your children – even though it might have been your intention to give everything to your children.
2. Would someone be able to contest my Will?
Generally speaking, you have the right to dispose of your property as you see fit. However, the Court does have the power to intervene if an eligible person (usually, your spouse or children) makes a claim against your Estate and the Court is convinced that you did not give them adequate provision. What is sufficient in the circumstances depends on issues such as what contributions they made towards you in your lifetime, what financial need they have, the size of your Estate and the competing claims of others. The relevant factors will depend on the circumstances of the case and, as this is a technical area, it is best to seek the advice of a solicitor if you are concerned about someone contesting your Estate.
3. When would I need to change my Will?
You should review your Will every 2 to 3 years or after every major life event such as:
- Getting married or divorced
- Having children
- Buying and selling property
- Starting a business
- Death of your proposed executor or beneficiary
We can help advise whether your Will is valid and whether it should be updated.
You do not need to change your Will due to a change of address.
4. Can I give away my superannuation in my Will?
Your superannuation is a non-estate asset and therefore does not automatically pass in accordance with your Will.
You can ensure that your superannuation benefits do pass in accordance with your Will by executing a Binding Death Nomination form in favour of your Legal Personal Representative of your Estate (your Executor). You can usually find these forms on the website of your superannuation fund. Note that these nominations often lapse every three years and need to be updated. Not all nomination forms will be binding.
5. What assets are not covered by my Will?
There are certain assets that you control in your lifetime that you cannot pass in your Will. These are called non-estate assets.
- assets you own as joint tenants with another person (where the other person survives you);
- assets which are paid directly to a superannuation dependant in the event of your death; and
- assets in a family trust.
6. What assets are covered by my Will?
Your Will only covers assets that are owned solely by you. These are assets held by you in your personal name alone, or as tenants in common with another person (as opposed to assets owned as joint tenants with another person).
Examples of estate assets are property, shares, motor vehicles and other personal items owned exclusively in your name.
7. Who needs to witness my Will?
Your Will needs to be witnessed by two adults that have the capacity, who are not beneficiaries under your Will. They do not need to have any particular qualification. They need to see you sign the Will and attest to that.
8. Whom should I appoint as my Executor?
Your Executor does not have to be a professional and can include someone that is also a beneficiary of your Estate. Your Executor simply needs to be someone over the age of 18 or a professional trustee such as the public trustee.
Your Executor does not need to have any unique expertise or skills. They are usually assisted through the estate administration process with the help of a solicitor and/or financial professional. They simply need to be someone that you trust to carry out your wishes.
You can appoint executors together (e.g. all 3 of your children) or in cascading order.
It would be best if you always appointed back-up executors in the event that your first designated Executor is unable or unwilling to act.
9. What is the role of an Executor?
An Executor is a person you appoint to carry out the terms of your Will. The Executor usually has to apply for a Grant of Probate from the Supreme Court in your State or Territory, giving them authority to deal with the assets in your Estate.
Once they have received the Grant of Probate, the Executor’s role is to gather all of your assets – e.g. getting banks to release account balances, selling/transferring property and shares. The Executor then has to distribute the assets in accordance with your Will.
Once the Estate is finalised, your Executor may also have to file a final tax return for you as the deceased individual and, potentially, even for your Estate.
10. Where should I keep my Will?
Your original Will should be stored in a safe place where it can be easily located after your death. Make sure you tell your executors where the Will can be located.
Legal Requirement – Please note your Will must be witnessed by two adults who are not beneficiaries (Executors are allowed to witness, provided that they are not beneficiaries to your Will).
Please contact us if you would like to inquire about our safe custody services.
Do you have a blended family, own a business or wish to establish a trust?
If so, you require a more complex Will. Please contact our Wills & Estate lawyers for more information.