Today’s topic: How to make a will in Australia?
Creating a legally valid will is one of the most important legal documents you’ll ever prepare, yet many Australians delay this crucial task due to misconceptions about complexity and cost.
With nearly half of Australian adults lacking a will, understanding the legal requirements and practical steps for creating a valid will has never been more important.
So, can you create your own will? And how to make a will in Australia? If these are some of the things that you want to know, then keep on reading till the end…
What is The Purpose of A Will?
Before talking about how to make a will in Australia, let me brief you on what a will is all about and what purpose it serves.
Basically, a will or last will and testament is a document required by law, which states a person wishes to be the distribution of the assets and properties that they own after their death.
Additionally, it empowers people to name the guardians of their minor children as well as to give instructions regarding the funeral.
At its core, a will is the document that gives the execution of the person’s desires in relation to the estate and the family after the person is no more.
The primary purpose of creating a will is as follows:
Clear Distribution Of Assets:
A will can be used to completely and explicitly outline the persons who will inherit your assets (cash, property, goods, investments, etc.), the quantities, and the conditions.
This prevents confusion and potential quarrels with family members and at the same time, your assets will be distributed to the people who you wanted and not those that are redistributed according to the state laws of intestacy.
Appointing A Guardian For Minor Children:
Setting up a last will and testament makes it possible for parents to decide who the legal guardian of their children will be and, therefore, who will take care of them, should they die unexpectedly.
This guarantees that only someone you trust and acts in accordance with your values will raise your kids.
Minimizing Family Disputes:
Should you choose to explicitly specify in a will the way you want your estate to be disposed of, then you are in a position to reduce misunderstandings and possible conflicts among your loved ones to a minimum.
Furthermore, such an arrangement will give you a sense of security and, at the same time, your family will be clear about the situation even in the time of mourning.
| Note: In some states like Queensland and Western Australia, the Public Trustee provides a free will-making service, but they typically require you to name them as your executor, which may involve fees later. In NSW, NSW Trustee and Guardian offers Will and Estate Planning services, with free preparation for those eligible for a full Centrelink Age Pension. |
Legal Requirements for Valid Wills in Australia
Australian will validity requirements vary slightly between states and territories, but the fundamental principles remain consistent across jurisdictions. Understanding these requirements is essential for ensuring your will stands up to legal scrutiny.
Here are the basic validity requirements for creating a will:
1. Age and Mental Capacity
- The will-maker (testator) must be at least 18 years old (16 in South Australia with court approval)
- Must have mental capacity to understand the nature and effect of making a will
- Must understand the extent of their property and the claims of potential beneficiaries
2. Written Form
- The will must be in writing (handwritten, typed, or printed)
- Oral wills are generally not valid in Australia (limited exceptions exist in some states for military personnel)
3. Signature Requirements
- The testator must sign the will personally
- If unable to sign, the testator may direct another person to sign on their behalf in their presence
4. Witness Requirements
- Two independent witnesses must be present when the testator signs
- Witnesses must be at least 18 years old
- Witnesses cannot be beneficiaries or spouses of beneficiaries
- Both witnesses must sign the will in the presence of the testator
| Bonus: State-Specific Variations While the core requirements are consistent, some states have unique provisions: •Queensland: Allows informal wills in certain circumstances •New South Wales: Has specific provisions for international wills •Victoria: Requires witnesses to sign in the presence of each other as well as the testator •Western Australia: Has detailed provisions for electronic wills (limited circumstances) |
Important note: Online wills are legal in Australia, but it would be advisable to set yours up with a reputable provider such as Willed.
Essential Components of a Valid Will
A comprehensive will should address several key areas to ensure your wishes are clearly expressed and legally enforceable.
1. Identification and Revocation Clause
Your will should begin with:
- Full legal name and address.
- Statement that this is your last will and testament.
- Revocation of all previous wills and codicils.
2. Executor Appointment
When it comes to appointing the Primary and Alternate Executors for the will, here are some of the things that you need to keep in mind:
- Name trustworthy individuals to manage your estate.
- Consider appointing alternate executors.
- Ensure chosen executors are willing and capable.
Additionally, here are the powers and duties of such executors:
- Grant the necessary powers for estate administration.
- Consider specific instructions for complex assets.
- Address potential conflicts of interest.
3. Guardian Nominations (for parents)
When it comes to minor children, here are some of the things that you need to keep in mind:
- Name the preferred guardians for children under 18.
- Consider alternate guardians.
- Include a brief explanation of your choice.
Additional considerations include:
- Guardian’s relationship with your children.
- Financial capability and family situation.
- Geographic location and lifestyle compatibility.
4. Asset Distribution
When it comes to specific bequests, you need to:
- Identify particular items and their intended recipients.
- Include detailed descriptions to avoid confusion.
- Consider sentimental items and family heirlooms.
Additionally, for the residuary estate, here’s what you need to keep in mind:
- Address remaining assets after specific bequests.
- Consider percentage distributions vs. specific amounts.
- Plan for asset growth or decline.
5. Trust Provisions
For minor beneficiaries, you need to:
- Establish trusts for children under 18.
- Specify distribution ages and conditions.
- Name trustee(s) to manage trust assets.
And what about the Discretionary Powers? Well, you can:
- Grant trustees flexibility for unforeseen circumstances.
- Include provisions for education and maintenance.
- Consider protection from creditors and relationship breakdowns.
Modern Considerations When Making A Will In Australia
Contemporary estate planning must address issues that didn’t exist for previous generations.
Digital Assets
Here are some of the most common types of Digital Assets that should also make it to the will:
- Cryptocurrency and digital investments.
- Social media accounts and digital photos.
- Online business accounts and intellectual property.
- Stored value accounts (PayPal, gift cards, etc.).
If you are facing difficulty with planning, here’s what you need to do:
- Provide clear instructions for access and transfer.
- Consider privacy and ongoing management.
- Address two-factor authentication and security measures.
Blended Families
For complex family structures, here’s what you need to keep in mind:
- Balance the needs of the current spouse and children from previous relationships.
- Consider step-children and their inheritance rights.
- Address potential family conflicts.
Here are some strategic approaches
- Use trusts to provide for your spouse while preserving your children’s inheritance.
- Make specific provisions for step-children if intended.
- Consider life insurance to equalize inheritances.
International Assets
Cross-Border situations are more common than ever in modern times. Here are some special considerations for such cases:
- Address assets in multiple countries.
- Understand the tax implications of international inheritance.
- Consider separate wills for different jurisdictions.
Your Legal Guide: How To Make A Will In Australia?
For the document to be legally accepted, it is important that you know how to make a will in Australia. But how to do that?
To make a will in Australia, you should follow these few steps:
1. Confirm legal capacity: You have to be at least 18 years old (or less if you are married). Besides, you are required to have a “testamentary capacity,” which means you are aware of making a will and can communicate your wishes.
2. Collect relevant details: You should come up with a detailed list of both your assets (property, bank accounts, investments, etc.) and liabilities (debts, loans). You also need to know the following about the beneficiaries:
- Names.
- Addresses.
3. Different ways to go about drafting your will: You have at your disposal a variety of choices when creating a will. The most typical of these are utilizing the DIY Will kits, employing a lawyer, or turning to the Public Trustee.
4. Signing and witnessing: First of all, your will has to be written. Secondly, the witnesses must also sign the will in your presence as well as in each other’s presence. Besides, during all the signings, it is crucial to use one pen only to go fully legal, since any disputes that may arise will find a way to be resolved.5. Storing and reviewing your will: Keep the original will in a secure location and let your executor(s) know where it is. Check your will from time to time, particularly after significant changes in your life like getting married, divorced, or having a child.
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