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DID YOU KNOW?

  • 85.8%
  • of seniors say they plan to pass down a financial legacy for the
    younger generations in their family.1

Are you interested in future-proofing your estate? Writing a will is one of the best ways to
do this, but it can be complicated if you’ve never made one before, where do you start?
What is the process, how do you make it legal? These are just some questions asked.

You may think that a will is just a document stating who will receive your assets after you pass away, but the process involves much more than that, including:

  • estate planning
  • probate
  • executors and power of attorneys

It’s important to understand the process, so we have
outlined all you need to know about wills, probate and estate planning and preparing your last will and testament. You can also download our free will kit that is legally approved when you’re ready to start preparing your will.#

What is a will?

A will is a legal document that explains how you want your assets to be distributed after you pass away, including your house, money, and personal belongings.2

Having a will that is clear, legally valid, and up to date will ensure your assets are protected and distributed according to your wishes.3

A will lets your loved ones know who you wanted as your beneficiaries, and this can help prevent issues regarding the distribution of your property and possessions (referred to as your ‘estate’). Your beneficiaries – and your lawyer – will then know who you wanted as your executor, the person or organisation responsible for administering your estate after you pass.

It will also allow for the provision of any children under the age of 18 in your care at the time of your death.3

As your personal situation changes during your lifetime, such as children, grandchildren or spouses becoming part of your life, your will needs to be updated to reflect your change wishes due to these developments. 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 bequeathed.

What is a last will and testament?

Throughout your life you’ll update your will as necessary, so your last will and testament is the most recent legal document you executed before your death, and that is signed by a legal representative. It essentially cancels out any will and testament you’ve made before.4

All previous versions of your will created are discarded by the court unless in the case of contesting a will on the basis of undue influence – see ‘Challenging a Will’. And of note, a will does not expire unless there is a more recent will that has been legally witnessed and signed.

  • 59% of Australians have
    a will
  • 22%of Australians expect to
    make a will in the future
  • 19% of Australian’s don’t have
    a will and don’t expect to
    make one in the future

Source: Public Trustee & Guardian

In all other respects a last will and testament is the same as a will – it’s the legal document by which you identify those individuals or organisations that will receive your assets or possessions on your death. These individuals and charities are commonly referred to as the beneficiaries under your last will and testament.

In addition, within the provisions of your last will and testament, you nominate an Executor to be responsible for the proper administration of your estate and the disposition of your property to your intended beneficiaries. The Executor may be an individual or an institution.

After your death, the person or entity you have nominated to be your Executor petitions the court to be appointed Executor of your estate. After being appointed, the Executor manages your estate’s financial affairs and ensures that your property is distributed in accordance with your wishes as indicated in the last will & testament.

The process of making a will

If your circumstances are simple, you can make a standard will online yourself.
But if your circumstances are a bit more complex, you should get a lawyer to draw
up a will for you.

How to make a willl

  • 1 Determine what your assets are For example, do you own your home? Do you have a car? Etc.
  • 2 Decide how you would like your assets to be divided
  • 3 Begin writing
  • Introduction. Identify that this document is your ‘Last Will & Testament’ (when you update your will you will still identify all future iterations as the Last Will & Testament). Include your full name and address, and state that you are over 18 years of age and mentally competent, and that you are not under duress.
  • Select an executor. Here you identify who you would like to be the executor
    of your estate.
  • Identify your beneficiaries. List the people who will be beneficiaries of your estate clearly so there can be no mistaken identity.
  • If you have children under 18 or dependents, name a guardian. You should leave provisions here if you have minor children or dependents in your care for who you would like the guardian to be. If there is another living parent you can specify them, however you could also name an additional person in case both parents were to pass away or be unable to care for the dependents.
  • Divide your assets. Bequeath each asset in your estate to the person/people you would like. Even if you prefer to divide your estate into percentages, for example leaving 50% to a spouse and 25% each to two children, you should still list each asset clearly.
  • Sign your will clearly and have two eligible people witness you signing – they will have to sign the document as proof of its validity. To be eligible, they cannot be beneficiaries and must be over the age of 18.4

For more information on drafting a will,
download our Free Legal Will Kit here.

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According to Kristy Hatcher, a solicitor specialising in Wills & Estate Litigation at Owen
Hodge Lawyers, the most common mistake she sees people make when compiling a will is
‘doing the will yourself’ without following a legal template or consulting with an
experienced lawyer.

“We live in a time when our lives are complex, our relationships even more so. Blended families, estranged relatives, loved ones with special needs with either a disability or addiction issues will be requiring trust arrangements.

It is extremely rare to see a person whose circumstances can be addressed by a DIY will. Getting professional advice for individual situations is key. As circumstances change, reviewing the will and updating arrangements are equally as important.”

Kristy Hatcher Wills & Estate Litigation

Making a valid will

For a will to be valid, it should be:

  • In writing (handwritten, typed or printed)
  • Written by a person who is over 18 years of age and mentally competent
  • Properly drawn up and clearly sets out the will-maker’s wishes
  • Signed in the presence of two adult witnesses who also have signed the will and are not beneficiaries.5
  • You don’t have to use a lawyer for your will to be legal, you could however choose to use our free Will Kit then you could consider having your solicitor review the document and keep a copy on file for the future. It’s also best to have a lawyer at minimum review your will to ensure it’s done properly.6

DID YOU KNOW?

  • 93%
  • of people over the age of 70 years old in Australia have made a will?7

If you have assets overseas and have made an international will, it will be recognised as a valid will in countries that are party to the Convention Providing a Uniform Law on the Form of an International Will 1973 – Australia is a party to this agreement.9

Copies of your will should be made with a note explaining where the original one is kept, preferably in a safe place known to you and your executor. This ensures the original will isn’t lost or misplaced, maintaining its validity.

Nominating an executor

When you make a will, you will need to nominate an executor who will be responsible for managing your estate once you are gone. When choosing an executor, it’s recommended that they are younger than you but over the age of 18 years old, are trustworthy, and can take on the responsibility. You should also nominate reserve executors in case the person you have appointed passes away before you, or is unable to take on an executor’s duties due to personal circumstances (such as being overseas and unable to return, or non compos mentis – meaning to be not in your right mind or not sane).6

You may choose to nominate a lawyer as your executor due to their expertise in administering wills, or you can choose a family member, friend, or expert from a will-related service.8

Changing your will

You will need to change/update your will when your circumstances change. For example:

  • If you divorce or remarry
  • If another child, grandchild, or other
    beneficiary is born
  • If you wish to remove or add a beneficiary
  • If one of your beneficiaries passes away.8

If you want to change your will, you’ll have to make a ‘codicil’, which is an amendment to the will on a separate document. Like your will, the codicil should be in writing, signed, and witnessed by two people.8

It may be best to consider involving your lawyer or another form of legal council when making changes to your will to ensure the legality of the changes are upheld as you wish them to be.9

Things to consider & do when planning your will

  • Carefully assess your personal assets and any other assets you control
  • Consider your financial dependents and less abled family members
  • Fully understand your relationships
  • Consider downsizing and giving gifts whilst you’re alive
  • Hold sufficient funds/assets for your financial, mental & health security
  • Plan on holding a family conference
  • Check on your super arrangements & investment portfolio
  • Make provisions to assets you control and nominate the
    responsible person.10

Challenging a last will

A will can be challenged on the basis of undue influence. This challenge can be validated if it is determined that you didn’t act voluntarily with true intentions while making the will and coercion was involved.9

A will can also be challenged on the basis of fraud, which can be validated if it is shown that:

  • A material fact was intentionally misrepresented
  • You were deceived in making your will by such misrepresentation
  • You relied on such misrepresentation
  • The person who committed the fraud was benefited under the will.11

Additionally, some people may feel they haven’t been fairly treated in your will. For example, a family member may have been left out of the will, or a loved one may think they should’ve received more from your estate. In fact, will disputes are becoming increasingly common due to the increasing complexity of the family unit.12

People who think they are entitled to a portion of your estate, or a greater portion if they have already been named as a beneficiary, may make a claim against your will, which is referred to as ‘contesting a will’.12

And it is not unprecedented for contests such as these to be successful – for example, in the case of the estate of Louis Kennedy, a Double Bay jeweller, his two adult children successfully petitioned the court for a greater share of his $5million estate than the $50,000 he bequeathed them.13 There are likely many cases where the court has decided that the “moral obligation" of a parent’s bequest to adult children is not reflected in the beqeathed (left to someone in a will) amount.13

People who can contest your will include:

  • Your current spouse
  • A former spouse
  • Your current de facto partner
  • A former de facto partner
  • Your children or step-children
  • Your grandchildren who were dependent on you and lived in the
    same house
  • Someone with whom you were living in a close personal relationship
    with at the time of your death.12

DID YOU KNOW?

  • 86%
  • of all claims to contest a will in Australia are made by immediate family: either children of the deceased 63% or partners of the deceased (including ex-partners) 23%.14

A claim must be made before the estate is finalised and distributed to the other beneficiaries.12 But if there are no challenges, your executor will carry out the directions specified in your last will and testament.

DID YOU KNOW?

  • 77.6%
  • of seniors hope to see the younger generations in their family have the financial know-how or the ability to live within their means.1
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What is probate?

Even if you have a valid will, your assets can’t be distributed instantly unless a court grants probate first.

Probate is a process where your executor has to register and ‘prove’ your last will and testament in your state or territory’s Supreme Court to get the authority to administer your estate and handle the disposal of your assets and debts.15

What is involved during the probate process?

Each Australian state and territory has slightly different laws and processes regarding
probate, however the process for the state of NSW, as an example, is as follows:

  • Your executor has to publish a ‘Notice of Intended Application for Probate’ on the NSW Online Registry website. This gives the Supreme Court advance warning of the application and allows your creditors and relatives an opportunity to make a claim on the estate or against the will.16
  • Your executor then has to wait 14 days after the probate notice is published before making a probate application in the Supreme Court.16
  • After 14 days, your executor can make a probate application (note that it should be made within six months from the date of your death). The documents needed are the original will, any codicil, and the Death Certificate. The forms required are the Summons for Probate, Grant of Probate, Inventory of Property, and Affidavit of Executor. These all need to be prepared, signed, and lodged.17
  • Once the Court has approved the application, your executor will be given a ‘Grant of Probate’.18 This legal document confirms that the will-maker has died, the will is valid, and the executor is who they say they are. It essentially authorises your executor to manage your estate in accordance with your will.15
  • Your executor can then publish a ‘Notice of Intended Distribution’ and a ‘Notice of Filing Accounts’. This will let your beneficiaries and creditors know that your assets will be distributed and that accounts are to be filed with the Court.19

probate in your state or territory

For information on probate in your state or territory, visit the relevant site below.

The legalities involved during probate

There are a number of legalities involved in the Grant of Probate process, with appointment of the executor being the first step. The executor is identified in the will of the deceased person and is notified of their role by the party who holds the last will and testament.

The executor’s role

Whether you’ve nominated just one or several executors in your will, their most important role is to obtain a Grant of Probate from the Supreme Court so they can administer your estate.20 Only an executor can apply for probate.21

Their second important role is to secure and distribute your assets and ensure the terms of your will are carried out lawfully. Some of their other duties involve:

  • Notify banks and other organisations of your death
  • Identify who the beneficiaries of your estate are and notify them of your passing
  • Determine the entitlements of the beneficiaries
  • Pay your debts and any estate claims, which might involve selling off assets held by your estate.22

In Kristy’s experience,

“Having an unclear understanding of the role of an executor during the probate process and poor management of the expectations of beneficiaries can create difficulties. Good communication between an executor and the beneficiaries is essential to effectively administering an estate.”

Kristy Hatcher Wills & Estate Litigation

Using the Grant of Probate

Whether or not a Grant of Probate is required depends on the assets of the estate.
For example:

  • If a bank holds money that belonged to you, your executor has to show the Grant as proof that they’re entitled to collect the money on behalf of the estate
  • If you owned a substantial number of shares in a company, the Grant will also have to be shown before the company transfers the shares to your executor
  • If you owned real estate in your name or held an interest in a property with someone else, the Land Titles Office will need to see the Grant before transferring land to your executor.20

Owning assets in another state or country

If you owned assets in more than one state or country, your executor may have to apply for a Grant of Probate in each area where the assets are located. But if you had assets in different states of Australia and in certain countries, your executor can apply for a resealing of the original grant.21

DID YOU KNOW?

  • 77.6%
  • of seniors hope to see the younger generations in their family have the financial know-how or the ability to live within their means.1

What is estate planning?

Estate planning is the preparation of tasks that serve to manage all of your assets and financial affairs in the event of your incapacitation or death.23

This includes the distribution of your assets to your beneficiaries, the settlement of estate taxes, making a will, naming a guardian for your children under 18, appointing a successor trustee for a family trust, providing for the transfer of your business and personal dealings, and setting up an enduring power of attorney.23

Why is estate planning important?

Establishing an estate plan is important because it covers everything you own and explains how every aspect of your life is to be dealt with while you’re alive and after your death.21

For example, estate planning involves making a will, but you can only include assets owned exclusively by you, such as your house, car, cash, savings, jewellery, books, photos, business, shares, and investments.25

For example, in the case of Louis Kennedy’s estate referenced previously, the assets included in his estate were a home in Bellevue Hill, a jewellery business in Double Bay, and a commercial property.13

The things you can’t include in your will can be covered by your estate plan, like assets from your superannuation fund, assets owned by discretionary or unit trusts, proceeds from your life insurance policy, and assets held in family companies or trusts.26

What is involved in estate planning?

To carefully plan your estate, you should:

  • Make a will that sets out your wishes for the distribution of your assets
  • Name a guardian for any children under the age of 18 years
  • Appoint a successor trustee for a family trust
  • Provide for the transfer of your business and personal dealings
  • Set up a power of attorney
  • Ensure any superannuation and life insurance monies will be
    distributed tax-effectively.24
  • Ensure the cost of your funeral is not a burden on loved ones by purchasing funeral insurance.

If you have a detailed estate plan in place, your wishes regarding the distribution of your estate are generally able to be followed.

What is a power of attorney?

A power of attorney is a legal document giving another person the authority to deal with your property and financial affairs on your behalf.
For example, they can pay your bills, sell your house, and look after your affairs while you’re travelling or ill.27

There are two types of powers of attorneys: a general power of attorney and an enduring power of attorney. When choosing between them, it’s best to choose the latter as they can continue to manage your property and financial affairs when you lose the capacity to make your own decisions. You can appoint a lawyer, family member, friend, or a will service to act as your attorney.27

“Having an estate plan, preparing a will, enduring power of attorney & enduring guardianship is the only way you can empower your loved ones to assist you if you cannot manage your own affairs,
and to carry out your wishes after your death. Too often these problems could have been easily avoided by having a proper
estate plan in place.”

Kristy Hatcher Wills & Estate Litigation

Ready to make your will?

If you haven’t made a will before, it’s okay.

“Simply starting can be daunting for many people. Consider your current financial position, anticipated future assets, next of kin and your chosen beneficiaries. A good estate planner will discuss these matters with you and provide advice as to the best way to plan
your estate to minimise taxation and give effect to your testamentary wishes.”

Kristy Hatcher Wills & Estate Litigation

A will is one of the most important documents you’ll ever sign in your life2, so once you have completed the Australian Seniors Insurance Agency Free Legal Will Kit, you may consider having it reviewed by your lawyer to ensure your will’s validity and that there is nothing you have missed.

Download a FREE Legal Will Kit

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Assets

Assets are the personal items you own that can be distributed to your beneficiaries after your death. They include items owned exclusively by you, such as your house, car, cash, savings, jewellery, books, photos, business, shares, and investments. It may also include assets from your superannuation fund, assets owned by discretionary or unit trusts, proceeds from your life insurance policy, and assets held in family companies or trusts.28 Your assets are collectively known as your ‘estate’.

Beneficiaries

Your beneficiaries are the people 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.29

Challenging a will

A will can be challenged on the basis of undue influence (you didn’t act voluntarily with true intentions while making the will and coercion was involved) or fraud (a material fact was intentionally misrepresented in the will). These challenges must be validated.10

Codicil

An amendment to the will on a separate document. The codicil should be in writing, signed and witnessed by two people, and may require professional advice.9

Contesting a will

A will can be contested by people who feel that they haven’t been fairly treated in the will. For example they could be a family member who’s been left out of your will and believe they’re entitled to a portion of your estate, or a loved one who thinks they should’ve received more from your estate.11

Creditors

A bank, supplier, or person that you owe money to. If you die and haven’t paid back the money owed, they can make a claim on your estate as repayment.30

Death Certificate

A document issued and signed by a doctor or the registrar of births and deaths stating the cause, date, and place of your death.31

Estate

Your estate includes all the property, possessions, and money you own. This includes real estate, cars, cash, pensions, personal belongings, shares, superannuation, and life insurance. Your debts are also part of your estate.32

Estate planning

Estate planning is the preparation of tasks that serve to manage all of your assets and financial affairs in the event of your incapacitation or death. This includes the distribution of your assets to your beneficiaries, the settlement of estate taxes, making a will, naming a guardian for your children under 18, appointing a successor trustee for a family trust, providing for the transfer of your business and personal dealings, and setting up an enduring power of attorney.23

Executor

The person or organisation you nominated in your will who’ll be responsible for administering your estate after you die, once they obtain a ‘Grant of Probate’ from the Supreme Court of the state in which you reside. You can nominate a lawyer, family member, friend, or a will service employee to be your executor.6

Grant of Probate

A Grant of Probate is a legal document given to an executor when the Supreme Court of the state in which you reside approves their probate application. It confirms that the will-maker has died, the will is valid, and the executor is who they say they are. It essentially authorises your executor to manage your estate in accordance with your will.33

International will

An international will is a will made overseas if the will-maker owns assets in another country. It’s recognised as a valid will in countries that are party to the Convention Providing a Uniform Law on the Form of an International Will 1973. This includes Australia.8

Last will and testament

Your last will and testament is the latest legal document you executed before your death. It essentially cancels out any will and testament you’ve made before. It’s final unless someone decides to challenge or contest it.4

Lawyer

A lawyer may be the person you choose to prepare your will, be nominated as your executor, or be appointed as your enduring power of attorney.

Power of attorney

A power of attorney is a legal document giving another person the authority to deal with your property and financial affairs on your behalf. For example, they can pay your bills, sell your house, and look after your affairs while you’re travelling or ill. When choosing between a general power of attorney and an enduring power of attorney, it’s best to choose the latter as they can continue to manage your property and financial affairs when you lose the capacity to make your own decisions. You can appoint a lawyer, family member, friend, or a will service to act as your attorney.27

Probate

Probate is the process in which your executor has to prove and register your last will and testament in the Supreme Court of the state in which you reside in order to get the authority to administer your estate and handle the disposal of your assets and debts. This process varies according to each state and territories practice.15

Resealing a Grant of Probate

If you also have assets in other states of Australia, your executor can apply to the Supreme Courts in those states to reseal the original grant. Once a reseal has been granted, your executor can also deal with the assets under your will that aren’t located in the state where the original grant was achieved.34

Valid will

For a will to be valid, it should be in writing (handwritten, typed or printed), written by a person who’s over 18 years of age and mentally competent, properly drawn up and clearly sets out the will-maker’s wishes), and signed in the presence of two adult witnesses who also sign the will and aren’t beneficiaries.5

Will

A will is a legal document that outlines what you’d like to happen to your assets after your death. You can choose beneficiaries to whom your assets will be distributed and nominate an executor who’ll administer your estate after you die.2

DID YOU KNOW?

Many seniors believe that social legacy is more enduring (84.2%) and more
important (81.7%) than leaving a financial legacy.1

View Our Sources

Sources:

1. Australian Seniors Series: Inheritance & Retirement - Australian Seniors Insurance Agency

2. What is a Will - NSW Trustee & Guardian

3. What is a Will - Investopedia

4. Last Will & Testament - Cox West Lawyers

5. Making a Valid Will - Find Legal Answers

6. Making a Will - Legal Aid New South Wales

7. Wills - Australian Law Reform Commission

8. The Importance of a Will - The Law Society of New South Wales

9. Codicils - Wills Hub

10. A Test of Wills - Sydney Morning Herald

11. Your Last Will & Testament - Owen Hodge Lawyers

12. The Last Will & Testament – Is it Final? - Lamrocks Solicitors

13. Children Upset by New Wife Win Battle over Estate - Sydney Morning Herald

14. Having the Last Word - Public Trustee and Guardian

15. What is Probate? - Public Trustee

16. What is Probate? - NSW Online Registry Courts and Tribunals

17. Making a Probate Application - NSW LawAccess

18. Applying for Probate - NSW LawAccess

19. Available Forms - NSW Online Registry Courts and Tribunals

20. When Someone Dies, What is Probate? - Andersons Solicitors

21. Filing for Probate - Supreme Court of New South Wales

22. What Does an Executor Do? - FindLaw

23. Estate Planning - Investopedia

24. Estate Planning vs Wills - MCG Legal

25. Wills and Estates - Victoria Legal Aid

26. What assets are included in your estate and covered in your will? - Gill and Lane Solicitors

27. Making a Power of Attorney - Legal Aid New South Wales

28. Things to Consider - Find Legal Answers

29. Beneficiary - Investopedia

30. Creditor - Investopedia

31. What is a Death Certificate and Why Do You Need One? - Science Care

32. What is an Estate? - Free Advice Legal

33. What is Probate? - Marsdens Law Group

34. Re-seal of Probate - CRH Law

35. Estates - Legal Aid Commission of Tasmania

# Disclaimer:

The Will Kit is not a substitute for legal advice. None of the author, publisher or printer (either separately or together) is involved in the giving of financial or legal advice or the attempt to give financial or legal advice. This kit contains a simple Will, which does not cover complicated family or financial arrangements, such as divorce-related maintenance issues or trusts. If you are unsure about any of the matters raised in this kit, or should you have a complex family situation or asset portfolio, you should seek expert legal advice and accounting advice prior to completing the Will.

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