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Creating Your Will – Where to Begin?

Written by Anastasia Misarvidis-Tyshing

Making a will is something we all know we need to do, however, sometimes the exact process for this isn’t always clear. Making sure your will has been properly worded and executed is essential in order to ensure your property and assets end up in the right place. Are you aware of what a will is?

Do you know the process to follow in order to create a properly executed one?

To answer help these questions, Jacqueline Brauman, Principal Solicitor TBA Law and an accredited specialist in Wills and Estates has spoken with Legally Yours.

Article Summary Points:

So, what is a Will?

A will is a legal document that establishes how your assets will be distributed at the time of your death. According to Jacqui, the basic requirements of a will include any document that is dated and signed by an individual, with two witnesses, which expresses the will maker’s intention for their assets upon their passing.

This intention is something known as a testamentary intention.

Just because the minimum requirements of a will seem simple, it doesn’t mean that creating a valid will is a straightforward or easy process. In reality, how you construct a will has developed over hundreds of years to make your testamentary intention obvious. To demonstrate this Jacqui gave the following example – say you were to write the following in your will:

  1. I leave all my property and assets to my children equally.
  2. I leave our family home to my spouse.

While these two statements may seem straightforward enough, because you have already given all your assets away in the first statement, the second statement will not be considered valid. Specificity, order, format and legal terminology help to make sure that your will is clear and valid.

Because of this, it can be valuable to seek expert legal advice in order to make sure that your testamentary intention is properly carried out.  ^

What is an Executor?

An executor is the individual or individuals that you appoint to actually make sure your will is carried out. An executor’s first responsibility is to carry out your wishes in regard to your body once you pass. According to Jacqui, your executor should be someone you trust.

Think of family members that are administratively savvy. Often it is a good idea to make one of your beneficiaries (someone receiving something from your will) an executor, as they will then have an interest in making sure your wishes are carried out.

In Victoria, you can have up to four executors at one time. It may be beneficial to appoint more than one in the event that one of your executors refuses to take on the responsibility.  ^

When should you update your will?

Whenever you experience an important life event, it is a good idea to update you will. For example, when you get married, it is assumed that your old will didn’t accommodate for your spouse and therefore it is automatically rendered invalid.

Alternatively, if you are going through a separation, it is a good idea to update your will as your testamentary intention has probably changed.

As a general rule, Jacqui advises that clients check their wills around every 5 years to make sure that they still reflect their current wishes.  ^

How young should I be when I get a will?

While you might not have a large amount of assets, it is still a good idea to get a will as young as 18. Something Jacqui has found most clients don’t realise is that their superannuation is one of their biggest assets, particular as it often has a life interest of around $200,000, is NOT covered by your will.

While super funds may ask for a beneficiary nomination to be made unless you nominate a spouse or child this nomination will usually not be valid. Further, your nomination is not legally binding, unless it meets certain requirements, and instead merely reflects your wishes.

Creating a valid binding nomination for your super fund, and directing the money to your will, is a solution for a young person who has no spouse or children.

Then the will must specify what should happen with the superannuation. So, even without many assets, it may still be worth creating a will.  ^

How much does it cost to create a will?

The price of creating a will varies on the amount of assets you have and the complexity of your wishes. Wills can range anywhere from $250 – $500, all the way up to several thousand.

The best way to see if you are getting bang for your buck is to check out the experience and content posted by your prospective lawyer.

Check to see if estate planning is an area of expertise the firm actually practices in, or if it is a sideline service.  ^

Can I use an online Will Kit?

For a number of reasons using a will kit in many situations will not create an effective will. Will kits often overlook superannuation and won’t alert you to the particular order, format and legal terminology required to create a valid will. While a will kit may be suitable for some simple situations, in most cases it is safer to meet with an experienced legal professional.  ^

What happens if I don’t create a will?

In Australia, if you don’t create a will there is a predetermined system in place of how your assets will be distributed; these are called Intestacy laws. These laws vary from State to State and will mean that you will not get a say on where your assets end up, or who controls it.

While these laws may suit some, they will not be suitable for all situations making it important to ensure you have a valid will.

For example, as a young person with no spouse or children, in the event you don’t have a will and you pass, your assets will be divided equally amongst your parents. While this might be suitable for some cases, it may not suit all situations; if one of your parents has not been present in your life, they will still be entitled to 50% of your assets.  ^

If you have a specific question or you’d like to let us know what you need help with, head to our Talk to a Lawyer search resource and find the right lawyer for your needs, or contact Jacqueline Brauman directly via Jacqui’s Legally Yours Lawyer profile.

This Hub Talk featured post does not constitute legal advice or a legal opinion on any matter discussed and, accordingly, it should not be relied upon. It should not be regarded as a comprehensive statement of the law and practice in this area.

If you require any advice or information, please speak to a practising lawyer in your jurisdiction.

No individual who is a member, partner, shareholder or consultant of, in or to any constituent part of Legally Yours Pty Ltd accepts or assumes responsibility, or has any liability, to any person in respect of this article.