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What is a Will?

A Will is a document which does two main things. First, the document contains an appointment of an “Executor”, (also called a “Trustee”). It is the job of the Executor to see to it that your wishes are carried out as to distribution of your Estate when you die.

Second, a Will sets out the deceased person’s wishes as to how he or she wants the “Estate” (or Assets) to be divided after death.

A Will does a number or other things as well, including:

  • revoking all previous Wills;
  • appoints Executor(s);
  • it may specify that the Executor has particular powers to deal with assets in a particular way;
  • it may specify that gifts to children be held in Trust for them until they are adults.

Who should make a Will?

Basically, everyone should make a Will. This is especially the case if you have assets in your sole name of any significance.

Many people in marriages or who live in de facto relationships, domestic partnerships, or same-sex relationships own assets in “joint” names. Upon death of one of the joint owners, ownership of the assets passes “by survivorship” to the survivor(s). Hence, even if you own assets in joint names you should still have a Will. You could become the owner of an asset by survivorship. If you were to then die, without a Will, your Estate would be Intestate.

Superannuation Law in Australia sometimes results in a deceased person’s superannuation entitlements being paid to his/her Estate. Even if a person owns assets of nominal value, it could be the case that the Estate consists of substantial superannuation entitlements. Again, without a Will, the law of Intestacy applies as to distribution of the Estate instead of the Testator’s wishes as set out in his/her valid Will.

Can I use a do-it-yourself Will kit?

The short answer is, “yes, you can”.

The longer answer is that it usually creates problems where they are incorrectly made, wrongly signed, mistakes made as to gifts and intentions unclearly stated to name a few. 

You may have particular wishes as to the distribution of your assets upon death which is not covered by the wording of a Will-kit which would cause drafting difficulties, may lead to informal execution of the Will and may even lead to ambiguities in the Will or to questions about the exact meaning of the Testator’s intentions.

Whilst a Will-kit may be a very cheap way of making a Will, and whilst it might be “OK” when you die, we recommend having a Will drawn up properly and professionally so as to exclude any question about the validity of a Will and as to the Testator’s wishes.

What happens if I do not have a Will?

If a person dies without having made a proper or valid Will, that person dies “Intestate”.

There are consequences of not having a Will and dying intestate. For example: 

  • The deceased person’s wishes about how he or she wants the Estate to be distributed will not be known, nor will those wishes be carried out;
  • There is no “Executor” appointed to carry out the deceased’s wishes. It is necessary for (usually the next of kin) to apply to the Court for “Letters of Administration” instead of applying for “Probate”. Obtaining Letters of Administration may be more complex and more expensive than obtaining a Grant of Probate.
  • The Law dictates what happens to the Testator’s Estate and how it is to be distributed. This is usually different from the Testator’s wishes, which will only be carried out under the terms of a valid Will.
  • Under a Will, the Executor is appointed by the Testator. However, under Intestacy (i.e. without a Will) the Administrator must report to the Public Trustee as to his or her Administration of the deceased’s Estate, which adds a layer of expense to the process of finalising an Estate.

See one of our Adelaide Lawyers or Modbury Lawyers at WBG Legal for advice regarding all matters relating to Wills, Inheritance Claims, Will Validity, Powers of Attorney and Estate advice. Contact us now to make a no obligation appointment.