Wills

Monday 18 October, 2010

Developed with lawyers from Maurice Blackburn Cashman

On this page: Why make a will? Ι Before you make a will Ι Making your Will Ι Beneficiaries Ι Appointing an executor Ι Changing your will 

Why make a will?

A Will is a legal document that specifies how you want your assets to be distributed when you die. Making a Will is very important. It's the only way that you can make sure that your assets are protected and that your estate is distributed as you wish.

If you die without a Will, you will not be able to say who oversees the distribution of your estate or who is to receive a share in it. It will be divided and distributed by a legal formula, and may not be as you expect or want it to be.

If you die without a Will, your estate will go to your nearest next of kin.

In short, if you have a spouse and no children, your estate will go to your spouse. If you have a spouse and children, your chattels (personal belongings) and your estate to the value of $100,000 will go to your spouse.

The rest will be divided among your children. If you have no spouse or children, then your estate will go to your parents. If they are no longer living, then it will go to your brothers and sisters. If they are no longer living, it will go to your nieces and nephews.

It can be complicated for people with little family. Sometimes an organisation like the State Trustees must search to find someone's next of kin. This is time-consuming and expensive.

Anyone who thinks that they should have been included in the Will could challenge it.

Before you make a will

Make a list of everything you own. Include all real estate, furniture, bank accounts, shares, money on term deposit, business holdings, insurance policies, collectables, interest in a trust or deceased estate, cars or any other item you may want to leave to a specific person or charity.

Give some thought to who you want to benefit from your assets (the beneficiaries) and who you will appoint to administer your estate (the executor).

Making your Will

Your Will must be in writing. It must signed by you in the presence of 2 witnesses (who are both present at the same time), and it must be dated at the time it is signed. You must be at least 18 years of age to make a Will (unless you are married or have obtained a court order).

At the time you make or change your Will, you must have the mental capacity to understand what you are doing. You must not suffer from any mental impairment that prevents this. You must be able to read the Will or have it read to you, and fully understand the document and its implications.

You must also be acting of your own free will, and not be under pressure from anyone else. If not, the Will or any changes may
be challenged and rejected by a court.

If you do not have capacity to make a Will, a person may apply for a court order for what's known as a ‘statutory Will' to be made on your behalf. A court will only make an order for a statutory Will if satisfied that you do not have capacity to make a Will yourself. The court must also be satisfied the statutory Will reflects what your intentions would be likely, or might reasonably be expected, to be.

You can get a ‘Do it yourself ' Will kit, for example from the Post Office. However, you may wish to ask an expert to help you, especially if your Will is likely to be complex. They can raise potential problems with you.

State Trustees also offers a Will-making service. This costs between $55 and $300 for a standard Will depending whether or not State Trustees is the executor. This service is offered by a ‘Will writer', and is available by appointment on 9667 6714.

To find a lawyer who specialises in this area, telephone the Law Institute of Victoria Referral Service on 9607 9550. 

Beneficiaries

When you make a Will, you can say who is to get particular pieces of your property. You can also name charities and make bequests to certain organisations. You can make bequests for any purpose that you think is worthwhile.

You may also choose to leave your estate ‘in perpetuity'. This means that your estate remains as it is for good, with the person or organisation you name benefiting from the interest earned on the estate. 

Appointing an executor

When making a Will, you will need to appoint an executor. This could be someone close to you whom you trust. Or it could be a professional person or organisation such as the State Trustees or a lawyer. If you appoint a professional, you will need to pay fees.

An executor is responsible for distributing your assets to the beneficiaries of your Will. An executor will also often attend to funeral arrangements, pay any outstanding debts or expenses, prepare tax returns and attend to business interests before distributing assets to the beneficiaries.

An executor can also act as a trustee to administer assets on behalf of children until they come of age. If the estate is large
or complex, the executor may be under a lot of pressure. Think about this when deciding whether to nominate a person or an organisation as your executor.

Changing your will

You can change your Will by:

  • making a new Will (which cancels your earlier Will)
  • changing your existing Will
  • revoking or cancelling your Will by tearing it up (If you revoke your Will, you will need to make a new Will to replace it).

If you make changes (including minor changes) to your Will or you make a new Will, the changes or the new Will must be made in exactly the same way as the original Will:

  • the changes or the new Will must be in writing, and signed by you in the presence of 2 witnesses
  • you must have the necessary mental capacity and be acting of your own free will at the time.

Reviewing and updating your Will

Regularly review and update your Will. You may want to make changes, for example if your relationships change, a beneficiary or executor dies or something changes about your assets. You should make a new Will if you get married, separated or divorced.

Store your Will safely and make sure your family and executor know where it is.

Distribution of property after a person dies

Many couples own their assets jointly, especially real estate and bank accounts. If one partner dies, land owned jointly must then be registered in the surviving partner's name. To register jointly owned land in their name, the surviving partner will need to fill in an application form at Land Victoria, Level 9, 570 Bourke Street, Melbourne, telephone 8636 2010.

This is a simple process. You usually don't need to get a formal court order in relation to the assets (called a grant of probate).
If assets are owned solely by the partner who dies, the executor must apply to the court for a grant of probate. You will need to see a lawyer about this.

The information on this page is necessarily brief and may not be relevant to every particular situation. You must get specialist advice if your will is complex.
 

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