Frequently Asked Questions

Your Will is a legally binding document that establishes how your property and assets will be divided after you pass away, including your house, money, investments and personal belongings. This document is also referred to as your “Last Will and Testament”.

Your Will documents the specific assets you would like to give to a person (known as a ‘beneficiary’), who will manage your estate (known as an ‘executor’) and any other specific instructions relating to guardianship of your children, your funeral arrangements and who will take over management of a business etc.

A clear, legally valid and up to date Will provides peace of mind to ensure your assets are protected and distributed according to your wishes. In the absence of a Will there is no guarantee that this occur.

As your personal situation changes during your lifetime, such as obtaining or selling investments, children and grandchildren becoming part of your life, entering a de facto relationship or marriage, divorces and/or re-partnering, your Will needs to be updated to reflect these changes in your life. Updating your will is essential if you wish to ensure there is no confusion when you pass away as to how you would like your estate left to.

Dying without a valid Will in place is called dying “intestate”. The legal procedures for dealing with your assets become more complicated, time-consuming and costly – and may cause more distress and hardship to your loved ones.

If you die without a Will, the State Trustee is likely to be appointed to distribute your assets. This is a government-appointed official who charges a substantial fee for this work often over a lengthy period. In addition, your Estate may be subject to additional taxes which could have been avoided by having a valid Will in place.

The State Trustee must distribute your assets following a strict formula set down in law specific to the State you reside.  In many cases this can simply mean all your assets are to be given to your first closest family member, for example, your surviving spouse, partner or children.

If you do not have a spouse or children, your Estate would usually then go to your next closest relatives: your parents, followed by your siblings.

In the absence of any living relatives, or if they cannot be located, your Estate may pass on to the Government.

There may also be other potential challenges, whether legal or otherwise for the surviving members of your family which can cause them unnecessary financial and emotional distress.

A Will is important for every Australian adult. Without a valid Will the Government will decide what happens to your estate. If you do not have a Will or it is out of date then this can result in a very stressful, lengthy and costly experience for your family at an already difficult time. It may even involve Court appearances which may involve proving your identity and your claim to the estate.

An up to date Will is the only way to control what happens after your passing and to make the management of your estate as simple as possible.

Although important for anyone over the age of 18 to have a Will, it is especially important for individuals who:

• Have assets and or liabilities such as a car or mortgage
• If your relationship status has changed recently either to single, de facto relationship, married, recently separated, divorced or have remarried
• Buying property or starting an investment portfolio
• Have children or are considering starting a family or having fertility treatment
• Have a blended family
• Have been diagnosed with a potentially life-threatening or terminal illness
• Own pets
• Are experiencing chronic problems with their health
• Are reaching old age or have physical or mental ailments
• Is about to travel or have surgery

A legally valid Will must adhere to the following conditions:

• It must be written by (handwritten, typed or printed) a person who is at least 18 years old and mentally competent.
• The two witnesses should not be an executor or beneficiary of the Will.
• The will-maker (principal)  must be acting of their own free will and not unduly influenced or coerced by someone else.
• The Will should clearly set out the will-maker’s wishes.
• No writing or alteration of the Will should be made after it is signed.
• The Will should be stapled ensuring you have all of the pages and must not tampered with.
• Signing the Will correctly is vital to ensuring your Will is valid.  That is, signed by hand in ink by the Will-maker in the presence of two adult witnesses (using the same pen) who speak and understand English.

Wills cannot be validly signed or witnessed using electronic signatures because the Probate Office of each Supreme Court requires an original (‘wet-ink’) of the will before approving a Grant of Probate.

Even if you already have a Will you should review it from time to time to ensure that it is still relevant to your circumstances. This ensures your estate will be distributed according to your wishes. We recommend this occurs every three to five years.

It is especially important to review your Will if any of the following events occur:

• You divorce, remarry or enter a new de-facto relationship.
• The assets or liabilities you own significantly change
• You change your mind about the provisions of your current Will
• A new child or grandchild is born or adopted
• Your executor is no longer willing or able to act as executor for any reason
• Anyone nominated as a beneficiary has passed away

The best way to make a change to your Will is to start again with a new document.

However, if the changes are minor, for example adding a gift or changing Executors, instead of creating a new Will you can use what is called a Codicil to amend it. Our Wills Your Way do not provide Codicils as it is our opinion a new Will should be made to avoid the risk of invalidation.

See below for more information on Codicils.

The executor’s role starts as soon as the will-maker passes away. Some of the duties an executor would be required to undertake are locating the will, organising the burial or cremation, determining the estate’s assets and liabilities, applying for a grant of probate, distributing the assets to the beneficiaries, paying the estate’s liabilities, finalising the tax position of the estate and resolving any disputes between beneficiaries if they occur.

The role of an executor can be complicated, difficult, time-consuming and sometimes stressful so it is best to appoint a person who you trust, and who you feel can fulfil the duties of the role. Like your will this is something that should be reviewed every three to five years.

An executor must act with due care and in the best interests of all beneficiaries when administering the estate.  Your executor does not need to have any legal expertise. An executor can always hire a solicitor should the need arise

Typically, you may choose anyone to act as executor except a minor. However, it is common for people to select an individual who will be receiving a substantial amount of property (i.e. a beneficiary) to be their executor such as a spouse, adult child, or trusted family member. The reasoning behind this is that the executor will want to ensure that the property is distributed properly adhering to your wishes.

Something to note is that an Executor could be disqualified if they have been convicted of a crime. Additionally, some jurisdictions place restrictions on non-resident executors (for example, some states specify that all non-resident executors must be related to you).

Note: if your executor is not also a beneficiary you might consider making a provision that your executor receives a fee for managing your estate especially if your estate involves property that will need to be sold and/or will require a lot of time and effort to manage.

Note:  if you are unsure who to nominate or you need to confirm this with the person you have in mind you can save your application and come back later to complete it.

Your beneficiaries are the people (or entity – e.g. a charity or organisation) you chose to receive your assets after you die. This may include your latest or former husband or wife, your latest de-facto partner, your children or grandchildren, and someone with whom you were living in a close personal relationship with at the time of your death.

A beneficiary has several rights under a Will, including:

• Receiving a copy of the Will
• Being informed that probate has been applied for and the current status of the application.
• Receiving a distribution of assets from the estate without delay.
• Being informed of any litigation involving the estate.

If you have children, you must list ALL of them in your Will. Any child not specifically named in your Will may have the right to claim against your Will as if no Will had been created. If you need to disinherit one or more children, you should do so by naming and disinheriting that child specifically. Otherwise, if you simply leave out a child, a court may assume that you made a mistake and may re-interpret the Will including the missing child. To disinherit a child from your will we recommend you seek legal advice.

Stepchildren are not your natural heirs unless you have legally adopted them. They are not included if you leave property to “all my children”. If you want to leave something to your stepchildren, you must name them as beneficiaries in your Will.

A note regarding pets: You should not name your pets as beneficiaries. Instead you should provide instructions to your executor to find suitable care for your pets and leave money for the pets’ upkeep.

A guardian is a person or people who will assume legal, moral and financially responsible for your children should something happen to you and your spouse

You do not have to appoint a guardian for your minor children. However, if you do not, the courts will decide who will look after them if no other person with parental rights survives you.

Choosing a guardian can be one of the most important parts of your Will.  The guardian will be responsible for making decisions regarding the day-to-day control and care of your children, including decisions about their upbringing, education, health and welfare.

The decision to nominate someone as a guardian is a serious decision that should be made carefully. Guardian(s) are usually a family member or close friend.

There are three main considerations that you should bear in mind when choosing who to select as guardian of your child/children:

• How do you want your child raised?

While we all want the best for our kids, most of us have very different ideas of what good parenting looks like. Whether it is the values we want them raised to espouse, the kind of lifestyle we want to them lead, or even the diet we believe they should have, these are all important considerations that factor into your parenting style. You should make sure to select a guardian who is likely to raise your kids in a similar fashion to how you would like them raised, so you have peace of mind about their future if you weren’t here to take care of them.

• The lifestyle impact of certain guardians on your child

The death of a parent is a jarring, difficult time for a child. On top of the emotional transition they are going through, it is important that extra stress is not placed on them by thrusting your child into a completely new and foreign physical space.

For instance if your choice of guardian lives overseas or interstate, or perhaps you are close friends with someone whose kids have radically different lifestyles to your own, you may want to take that into account to make sure that the lifestyle impact on your child is minimised as much as possible. Moving schools, adhering to new schedules and changing activities can all be traumatic for a child. The less change that they have to undergo will make the process emotionally and logistically less difficult than it otherwise already is.  

• A guardian’s capacity to accept the responsibility

Often parents will nominate a grandparent to take responsibility of guardianship over the child or give guardianship to a relative or friend that already has children of their own. It is however always important (and particularly so when the guardian has multiple children themselves) to make sure that an appointed guardian has the ability to care for your children.

This may change due to age or sickness, or because a person who was nominated all of a sudden has a few kids of their own. You should be considering the guardianship appointment whenever your circumstances, or those of your nominated guardian, change, to ensure ongoing suitability to take care of your kids.

• Consider appointing a backup guardian

Given the importance of guardianship, it is a good idea to consider naming a back-up guardian, in case your primary guardian is unable or unwilling to take care of your child.

Your Estate Assets is the collection of everything you own at the time of your death. This includes all assets, big and small, before any debts have been repaid or assets distributed to beneficiaries. What is left over after all estate debts have been paid is known as the Residual Estate. 

The ‘gifts’ you choose to include in your Will are the specific items, assets, or amounts of money you choose to give to a specific beneficiary (an individual or a charity). 

A beneficiary can therefore receive property under your Will in one of two ways:

• They receive a portion of your residual estate – in the ‘Estate/Residual Assets’ section.
• They receive a specific gift (specific possession or amount of money) – in the ‘Gifts’ section.

Leaving a beneficiary part of your Residual Estate means they will receive a percentage of whatever is left over from your estate after all expenses, debts and gifts have been paid out or distributed. Gifts, as described above, are the specific items, assets, or amounts of money you express in your Will that are given to an individual or charity.

Not all property can be given away in a Will.

Property that cannot be gifted in a Will is commonly referred to as “non-estate assets” and includes:

• Superannuation death benefits: Typically, the superannuation fund trustee has the discretion to decide who receives the superannuation benefit, unless a binding nomination of beneficiary is made. However, in practice the trustee will usually follow the will-maker’s death benefit nomination which you select when you first open your superannuation account (although they are not obliged to do so unless a binding nomination has been made).
• Life insurance proceeds.
• Assets owned in a family or unit trust.
• Assets held by a private or family.
• Jointly owned property. Full ownership of any jointly held property will be automatically transferred to the surviving owner.

There is currently no legal definition of ‘digital asset’. However, it is broadly understood as referring to any content, account or media created and stored either online or on a digital device. Examples of digital devices include smartphones, iPads and computers.

This means digital assets can range from social media accounts to e-books and digital music files. They also include accounts with websites such as eBay, Amazon, PayPal, iTunes etc.

Other examples of digital assets include:

• Facebook entries and photos;
• blogs and tweets;
• photos and videos uploaded to a storage or sharing website;
• any websites created using a third party’s services and hosting facilities; and
• sent emails.

How can you preserve your digital assets?

The concept of digital assets is relatively new. Because of this, there is so far little consistency of approach amongst service providers, and no single definitive answer on how to preserve them. You should therefore plan ahead to prevent digital assets of sentimental or monetary value from being lost.

If you would like your personal representatives (these are the people responsible for dealing with your estate) and family members to have access to your digital assets after you die, you should consider leaving a record of your various accounts, together with login details and passwords. You should also indicate how you would like your personal representatives to deal with the assets after your death.

Given the potentially sensitive and personal nature of certain digital assets, you may wish to place this information inside a sealed letter stored with your will, as opposed to putting this information into the will itself. This is because once you die, your will becomes a public document. Storing the information in a sealed letter, alongside your will, therefore maintains a degree of privacy.

Where digital assets on the web are owned by online service providers, your personal representatives may have difficulty accessing your digital accounts.

For example, you might decide to purchase a given amount of storage from an online service provider (e.g. Google), in order to store your digital photos. To view, add and/or delete the photos, you will need to sign into your account. You own the account, and you own the digital photos. What you do not own is the storage facility – that is owned by the online service provider. This is where the (potential) difficulty arises; the online service provider may not allow your personal representatives access to your account. This might be because doing so would breach their privacy policy.

Therefore, where possible, you should keep hard copies of your digital assets, or store them on a disc or other storage device.

A Will can usually be contested by a spouse, de-facto partner, child or parent – and in some circumstances it can be contested by a grandchild or anyone else (like a carer) who feels they may have a rightful claim.

A Will can usually only be contested when somebody argues that you had an obligation to provide for them. The basis of the challenge may be that the will-maker did not have the mental capacity to make the will at the time they signed it; that they were under the influence of others (undue influence) or that they made inadequate provisions for the claimant based on their specific circumstances.

A will-maker must take particular care when seeking to exclude a spouse, de facto partner or child from their will as it raises the possibility of the will being challenged.

There is nothing that you can write into your Will which will ever ‘guarantee’ or prevent someone from trying to challenge your bequests after your death. However, being aware of the potential claimants and taking certain steps to make your wishes very clear may help ensure your estate and assets are distributed in accordance with your wishes.

If you are intentionally leaving someone who may have a right to claim out of your Will, or you believe there may be a strong likelihood that someone may contest, writing a letter (or including this in your Statement of Wishes) setting out the details of your decision and the reasons for your decisions and leaving the family member or other person out of any bequest may be sufficient to avoid any dispute. This written confirmation from you provides strong evidence that your decision was made with great thought and understanding and clarifies your wishes.

Yes, it is possible in theory for couples to have a joint will where the surviving spouse inherits the entire estate when the other spouse passes away. However, joint wills are not preferable because they cannot be revoked by the surviving spouse, regardless of the changed circumstances after the death of his or her spouse. As joint wills are impractical, a better solution is for a couple to make mutual or mirror wills which are separate wills which confer reciprocal benefits upon each other.

Yes, you can, although we suggest you complete our Statement of Wishes template where you can express all your thoughts and update whenever you like. Keep this document with your Will to ensure your Executor can find it.

This is a nice way to ensure that you go out in the way you want to, and allows you to specify how you want your remains dealt with, your final resting place, and any other funeral instructions (for example if you want a particular person to deliver a eulogy, music choices etc).  

Detailing your funeral wishes also saves your loved ones from the difficult process of guessing what you would have wanted, and although the instructions are not legally binding, your executor will try their best to carry out your requests. 

Please note that your funeral wishes are non-binding on the executor and therefore can be ignored. However, it is unusual for an executor to override the will-maker’s funeral wishes.

You should store your original signed Will in a safe and secure place – and let your Executors know where to find it. There is no legal requirement or need to give it to a lawyer or anyone official to hold onto, though some people find this a useful way of making sure it is secure. Neither do you need to register it. Normally it makes sense to keep it along with your other important legal documents such as your property titles, banking and financial affairs in a safe or other locked area.

Probate is a legal process which involves the Supreme Court validating (proving) a deceased person’s will so that the executor named in the will can administer a person’s estate and distribute it to the beneficiaries.

A Grant of Probate by the Court gives a person the legal right to administer the estate of a person who has died. An executor with a Grant of Probate has the authority to deal with the assets of the estate such as bank accounts, real estate, superannuation, share portfolios, etc.

After a Grant of Probate is made, the assets will vest in the executor, and the executor will be required to distribute the assets of the deceased according to the will. This will occur after all debts have of the estate have been repaid. In the event that the debts of the estate are greater than the assets then the debts will not need to be repaid by anyone else.

The deceased person’s bank accounts and other assets will be frozen until the executor has obtained the Grant of Probate, except that most financial institutions allow the executor named in will to withdraw limited funds from the deceased bank accounts to pay for the funeral.

One common question that people ask is how long it will take for the beneficiaries to receive the proceeds of the estate. This depends on a number of factors such as how many liabilities and assets you have, where the beneficiaries are and whether anyone challenges your Will at probate. In a typical case where you do not have many debts, the Will is not contested and none of your assets are particularly complicated or unusual, it normally takes between three and six months between your death and the last of the monies being paid out. Most of this time is taken up by the valuation and sale of the assets.

An Enduring Power of Attorney is a legal document that allows you to nominate one or more persons (referred to as an Attorney or Attorneys) to act on your behalf for legal, financial and personal decisions. This can start whenever you decide and continues to be effective if you lose the ability to make your own decisions due to incapacity, illness, injury or other issues.

The attorney’s power continues even if for any reason you lose your mental capacity to manage your own affairs. Once you lose your mental capacity you cannot revoke this power of attorney. If you want the power of attorney to cease if you lose your mental capacity, consider appointing a General Power of Attorney instead.

An Enduring Power of Attorney is a separate document to your Will.

More and more people want to plan for their future medical treatment in case they are no longer able to make their own decisions due to illness or injury. You are able to choose a person to make your medical decisions for you if you are not able to make them yourself. This person is called your Medical Treatment Decision Maker.

An Advance Care Directive is a statement about what capacities or functions you value, as well as instructions for any future medical treatment.

This will typically have two parts:

• An Instructional Directive Statement is a legally binding statement in which you consent to or refuse specific medical treatment or procedures. Your Instructional Directive acts as a communication to your doctors and takes effect as if you had consented to, or refused, the treatment yourself.

• A Values Directive Statement is a statement of your values and preferences for your medical treatment, prioritising your views in relation to things like being able to recognise family and friends, whether you can feed, bathe, toilet and dress yourself, or live free from continuous pain. Your Values Directive enables you to communicate your preferences to your designated Medical Treatment Decision Maker so that they understand what is important to you.

This allows your Medical Treatment Decision Maker/s to use your Values Directive to assist them if or when the time comes to make any decisions about you, in a way that will align with your choices.

An Advance Care Directive is s separate document to your Will. The instructions contained in your Advance Care Directive cannot be included in your Will as they will pre-date your death.

A Statement of Wishes is a separate document to your Will. It is not binding but can assist your executors when it comes time to administer your estate.

Things that might be included in a Statement of Wishes:

• Funeral matters (music to be played, naming the pallbearers, how your ashes will be scattered and any other burial or cremation instructions).
• the location of your assets so your executors may easily find them
• advising your minor children’s guardians about how you wish your children to be raised
• who you would like notified about your death.

Things that you should not include:

• gifts of any kind
• appointing someone to manage your affairs
• organ donation or body donation for research purposes
• any statements that are inconsistent with your Will

A Statement of Wishes is a separate document to your Will.