Making a will is very important. It is 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 strict 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 goes to your spouse. The rest is 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. Complications arise for people with very little family. Sometimes an organisation like the State Trustees must do an exhaustive 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.
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.
Consult a professional to help prepare your will so that challenges can be canvassed with you, and perhaps be avoided. 'Do it yourself' kits are available from various sources, including the Post Office which offers a will kit for about $30.
State Trustees also offers a will-making service which costs between $70 and $150 depending whether or not State Trustees is the executor. This service is offered by a 'will writer' and is available by appointment on (03) 9667 6444.
If your will is likely to be complicated, it is important that you see a professional to help you prepare your will. This will make sure that complications or problems can be discussed with you and perhaps avoided.
To find a lawyer who specialises in this area, you can call the Law Institute of Victoria Referral Service on (03) 9607 9550.
If your will is relatively simple, you may want to consider the 'do it yourself' kit.
Many couples hold their assets jointly, instead of separately, especially housing and bank accounts. If one partner dies, the assets owned jointly must then be registered in the surviving partner's name. This is a reasonably simple process, and it is usually not necessary to get a formal court direction in relation to the assets. The formal court direction is called a Certificate of Probate. If property is owned, the surviving partner will need to fill in an application form at the Department of Sustainability and Environment, 8 Nicholson Street, East Melbourne, phone (03) 8636 2831.
However, where assets are to be sold, an application must be made to the court for a Certificate of Probate. You will need to see a professional about this.
When you make a will, you can be specific about who is to get any particular pieces of your property. You can also nominate charities and make bequests to certain organisations for specific purposes. You may choose to give to organisations that perform research or undertake welfare. 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 eternity, with the nominated person or organisation benefiting from the interest earned on the estate.
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 administration fees.
An executor acts as administrator of the estate, and 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. Depending upon the size and complexity of the estate, the executor may be under a lot of pressure. You need to take this into account when deciding whether to nominate an individual or an organisation as your executor.
When making your initial will or making minor changes to your will, you must be of 'sound mind'.
This means that at the time of making or changing your will, you have to be able to read the will or have it read to you, and fully understand the document and its implications. You must not be insane, senile or under pressure from anybody else. If you are not of sound mind, the will itself or any changes you make may be challenged and rejected by a court.
You should make sure that your will is stored safely and that your family and executor know where it is.
The information contained in this chapter is necessarily brief and may not be relevant to every particular situation. You must get specialist advice if your will is complex.
Updated June 2004
