A Will is an important legal document that expresses your wishes as to how you want your assets to be distributed after you die. You can also appoint someone to look after your assets (ie, your trustee) and your children (ie, your children’s guardian) if they are under 18 years old.
From a social perspective, a Will is your last testament and forms part of your legacy. A well crafted Will ensures that you don’t leave problems or a mess for your family and friends to sort out.
Anyone over the age of 18 years should have a valid and current Will, and if that’s you – then you need a Will too.
It doesn’t matter whether you’re married or have children, and it doesn’t matter whether you think you own anything of value. The reason that you need a Will is because one day, you will die.
This is the common thread that connects all of us. We’re born into this world and we’ll eventually leave this world – and when that happens, what are you leaving behind?
Someone’s going to have to sort out your estate after your passing, and having a Will is intended to make their job easier – so even if you don’t do it for yourself, you really should be doing it for the friends and family that you leave behind.
Having a valid Will is the best way to ensure that your assets will be taken care of and distributed as you intended. Otherwise, your estate will be distributed according to the law in your State and result in an outcome that you never wanted or expected. For many of our clients, the applicable law is that of the state of New South Wales, Australia.
An old Will doesn’t necessarily mean it must be updated.
You should check the old Will to determine whether it’s still relevant. If there’s been no significant changes in your life, then maybe it doesn’t need to be changed or updated.
On the other hand, there’s nothing stopping you from making a new Will just because you want to either. Making a new Will helps to ensure that your current intentions and wishes are properly reflected in an up-to-date Will which has also been drafted according to current drafting styles.
For us, the process of making an updated Will is the same as just making a Will. We need to go through the same questions to determine your current situation before proposing any draft – we don’t (and can’t afford to) make any assumptions about you or your circumstances based on a previously made Will (even if we made that Will for you).
Making a Will is relatively inexpensive, especially when you compare it to the potential consequences that can arise from not having a Will.
In most cases, we offer fixed fees for our Will services to help our clients budget for the cost and to give them peace of mind.
Normally, the cost of making a Will relates to the work involved, both in terms of drafting as well as advice. If you have a complicated asset structure or if you have a complex family structure or personal relationships, then it’s possible that your Will is going to be more expensive compared to someone whose life is relatively simple.
The cost of making an ‘updated’ Will is the same as making a Will since we go through the same process to ensure that your circumstances and all of the relevant information has been fully considered before making the ‘updated’ Will.
If you die without a legally valid Will, there’s no formal record of how you intend to distribute your estate or to whom you wish to distribute it to.
In such cases, the laws of intestacy apply and your belongs will be distributed according to a pre-determined formula based on the law in your state. If the formula isn’t according to your wishes or not in the best interest of your family, then you’ve basically left problems for them to deal with on top of having to deal with your passing. Is that what you really want for them?
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.
You can review or update your Will at any time. We recommend reviewing your Will whenever there’s a significant event in your life. For example:
Your Will is your ‘Last Will and Testament’ and the final word/legacy that you leave behind. Accordingly, it’s important that your Will properly reflects your situation, circumstances and your wishes, and is kept up to date.
There are many ways to make a Will. But since it’s an important legal document, you should obtain specific legal advice and assistance. That’s where our office can help you.
Applying the law to your personal situation and circumstances is what we do best! We make sure that your Will properly reflects your wishes and is legally valid. However, don’t think that a Will is something that we can just give to you. It takes your input as much as it takes our expertise and so be prepared for the process that’s necessary to ensure that it’s done right.
Of course, there are less reliable ways of making a Will, which can include doing it yourself (unless you know what you’re doing) or by buying a Do-It-Yourself Will kit. Will kits are readily available online but they can also be bought from your local Australia Post shop. Unfortunately, we’ve also seen many situations in which people have thought they were saving time and money by making their own Will (not according to the law) and it creates more problems for their executors, especially when applying for probate through the Supreme Court.
Your executor will be responsible for carrying our your wishes as specified in your Will.
Generally, the person that you appoint should be someone that you can trust and you are confident that they will follow your instructions. In most cases, people appoint their spouse, their children or their next of kin (ie, closest relative).
If you have challenging family dynamics (which could create problems for a family member if they were appointed as your executor) you can also appoint the public trustee or some other professional service as your executor.
The executor in your Will and your attorney appointed by power of attorney are two different roles – so you can appoint two different people to these roles.
However, in many cases, the person you appoint as your executor and the person you appoint as your attorney would generally be the person who is closest to you and the person you trust the most – so it also makes sense that you might appoint that person as both your executor in your Will and your attorney in your power of attorney.
Your enduring power of attorney is intended to operate while you’re still alive. You appoint someone (your attorney) to look after your legal and financial matters if you are unable to look after them yourself (ie, you’ve lost your mental capacity).
However, once you pass away, your power of attorney is no longer valid and your attorney no longer has any authority. That’s when your Will becomes effective. If you’ve appointed the same person as your attorney in the power of attorney and your executor in your Will, then it’s like that they will look after you when you can’t look after yourself, and continue to look after your estate when you’re gone.
We don’t provide ‘joint’ Wills for people. In the past, there have been practices that have created joint Wills for spouses, but that also creates unnecessary complications as each person’s estate is separate from everyone else’s estate (even if they’re married).
Your Will is intended to be your personal Last Will and Testament and it wouldn’t be combined or shared with someone else.
What do you mean by ‘simple’? Many people say they only want a simple Will, but when prompted they realise that their situation is far from simple and there can be serious consequences from just ‘glossing over’ some of the details.
The reality is that our lives are complex. You can’t really sum up a person in a few lines or doing so wouldn’t do them justice. Despite this, we can choose to apply a very broad bush approach to try to keep things simple.
To help our clients understand our ‘simple Will’ offering, we’ve created a straight-forward instant online quoting tool. After answering just a few questions, we’re able to provide a low cost fixed fee quote to prepare a simple Will. In this offering, a simple Will generally means that you’ll appoint one person as your executor (ie, spouse or children) and you’ll give the whole of your estate to one person or category of person (ie, spouse or children).
Again, it might not be suitable for everyone’s situation, but it can be applied to anyone’s situation if they accept that there are limitations that are not covered within the scope of a simple Will.
The simple Will assessment is an instant response tool to help people determine whether a simple Will is appropriate for their circumstances or not. You can still choose to have a simple Will even if we think your circumstances are ‘more complicated’ and not suitable for a simple Will – but you just need to accept that it wouldn’t cover many of the issues and be limited in its application and relevance.
Generally, a simple Will only appoints one person (or type of person) as your executor with an alternative if you choose there to be, and your beneficiaries are your immediate family/next of kin. That’s it. Anything else, isn’t covered under that service offering. If you want more, then it’s not a simple Will.
Even if you think you own nothing, the chances are that you’ll still have some assets to your name. It doesn’t have to be ‘a lot’. In fact, if you don’t have any assets, then it’s still possible that you have debts and liabilities instead. We all have something when we die.
Whatever the case may be, the purpose of having a Will is to help your family and loved ones sort out your estate after you pass away regardless of the size or the value of your estate. Your Will can help facilitate any legal process that needs to happen and avoid some of the hassles and the headache of passing away without a Will, especially for the person who is responsible for sorting out your estate (ie, your executor if you have a Will or your administrator if you don’t). Ultimately, if you don’t put these measures into place before you pass away then you’re potentially leaving these issues to be sorted out by others (ie, your executor/administrator and your family).
Nothing’s wrong with doing it yourself or buying a DIY Will kit if you’re not concerned about whether you’re doing the right thing or not.
If you’re not familiar with the law relating to making Wills (or probate, being the legal process of proving the Will in court after you have passed away) then trying to write your own Will could be risky and have unknown consequences. In fact, having a poorly written Will can create more problems than not having a Will at all. You might not have to live with your mistake, but others will.
Also, the problem with the DIY Will kit is that it’s not suitable for everyone. These kits are intended to address generic situations which may have no relevance to your own situation at all. Again, attempting to rely on general information to write a Will that’s specific to your situation could have unexpected results. Even if we make a simple Will for you, we still have to assess all of the information that you present to us to determine whether it’s suitable, and what information then goes into your simple Will to ensure that it properly reflects your situation and your wishes accurately.
Too many people these days attempt to get guidance from unreliable sources like the internet. Search engines provide knowledge but they cannot offer wisdom. Knowledge is only useful if it’s relevant and you can properly apply it when you need to apply. In relation to making a Will, you need to be able to properly apply whatever knowledge you gain from whatever source to your situation so that the Will that you make will be not only legally valid but also relevant at the time of your passing. Unfortunately, you will never know if you’ve made a mistake.
Sometimes people require Wills urgently. It may be because they’re travelling and this is just one of those things that they think they need to do before they board a plane, otherwise it may be more serious – like a bedside Will taken from someone likely to pass away shortly.
There are limitations to what we can do and when we can do it, but ultimately we understand urgent situations also demand urgent assistance. If you need urgent assistance we can attempt to do what we can, but it’s always best that these things are sorted out well in advance and so it’s done properly rather than hurriedly.
Probably not. If someone doesn’t have mental capacity, then they aren’t able to make a Will. However, whether being diagnosed as having ‘dementia’ classifies them as not having their mental capacity really depends on the severity. If there’s an existing diagnosis, or suspicion that they lack mental capacity, then it would generally be necessary for them to obtain a doctor’s certificate to confirm their mental capacity and ability to make a Will (ie, understand what they’re doing and the legal consequences of their decisions and actions).
No, Wills don’t need to be signed in front of us – although in most cases when we help prepare Wills for people, we recommend that they come to the office to sign their Will as well. That way, we can also discuss the Will and any questions that they have before signing the Will. From our view, it’s preferred for completeness but it’s not necessary.
If you’re not able to come to our office for whatever reason, we can still assist with the signing process (or provide you with instructions on how to do it properly) and finalise your Will.
In New South Wales, the legal requirement for signing a Will is very simple and it can be arranged with witnesses who have no connection with our office. Due to the global pandemic in 2020, the government also introduced legislation that allowed certain legal documents (such as Wills) to be signed and witnessed electronically. Accordingly, we’re also able to assist remotely in certain circumstances especially if there’s no other options available to you, but despite these changes to the law we still recommend that you sign your Will physically in the presence of your witnesses.
Yes, we can still assist – but ultimately, the person making the Will is the person who instructs us. We must confirm our instructions with that person about what to include (and not include) in their Will. It’s quite common for family members to sometimes help with the Will making process, depending on the person making the Will, but it doesn’t change our requirement to confirm our instructions with the person that we’re making the Will for.
Also, if you want to make a Will for someone else, maybe you should really be making a Will for yourself too and this would be the perfect time to do both. Right?
Unfortunately, no. We previously offered Islamic Wills however the solicitor who was responsible for this practice area is no longer with our office. We’re sure you’re able to find other offices that can offer Islamic Will services on the internet.
Probate is an order from the court (in New South Wales, this is granted by the Supreme Court) confirming that someone’s Will is a legally valid document and authorising the executor named in the Will to look after that person’s deceased estate (and distribute it according to the Will). Ultimately, this is the end goal and purpose of making someone’s Will – that it will be confirmed as a legally valid document and be granted probate after that person passes away.
We help make Wills, and we assist with applications for the grant of probate as well.
If you pass away without a Will, your estate will be dealt with according to the law of intestacy which is contained in legislation. The law of intestacy divides your property according to certain principles – generally following next of kin and family. The legal process through the court is called Letters of Administration (instead of Probate) and it can sometimes be more complicated and require more work depending on your situation.
The purpose of the Will is to ensure that your property is dealt with according to your wishes rather than by some formula (which can also change depending on the legislation). If you’ve already taken the step of doing your research and you’re reading these FAQs, then you’re already well on your way to working out that it’s better to have a Will than to not have a Will (even if it’s just a simple Will). That’s the way you’re able to provide some level of certainty for those you leave behind. We’ve seen too many situations where people have passed away only to leave a mess for their family to clean up because they didn’t have a Will or they had a Will which wasn’t written properly. It’s unnecessary.
A testamentary trust is a trust that you establish in your Will. The person(s) you appoint as your executor and trustee will be responsible for the management of the testamentary trust, and the trust will contain whatever assets you leave to it in your Will on behalf of your beneficiaries (the people who receive a benefit from your estate through the testamentary trust).
It depends on your situation.
As a very basic example, people who want to leave assets to children (ie, under 18 years old) generally establish a testamentary trust in their Will, put those assets in the trust, appoint a trustee to manage the trust (and the assets in the trust) with instructions that the assets are only released to the children at some specified time in the future (ie, the child turns 18 years or older etc).
Yes, if an intended beneficiary is under 18 years old, then we will include a very basic testamentary trust for the trustee to hold the gift or bequest for those children until they turn 18 years old (or older if desired).
No, if you intend to use the testamentary trust as an assets protection, tax minimisation vehicle, or to operate some other income generating purpose. The simple Will testamentary trust would not satisfy your specific requirements in that case.
Some people include organ donation in their Will, however by the time anyone really looks at your Will, it would be too late to follow any direction in relation to organ donation. Maybe your Will could be used if there was a dispute about whether you wanted to donate your organs, but this generally wouldn’t be the first place that people will look to determine whether you had wanted to donate.
If you’re interested in being an organ donor, there are various other places where you can register such as the Australian Organ Donor Register.
Yes, you can include instructions to your executor about funeral rites and ceremonies. For example, some people choose to have religious ceremonies, some people choose to be cremated and their ashes placed or spread in certain places, some people already have pre-arranged funerals and what those wishes to be follows.
However, it’s likely that all of these things will be sorted well before anyone looks at your Will. If you are concerned about what happens to your body after you die, you should discuss this with your intended executor and your family so that they’re well aware of your wishes.