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Why do you need a Will?

Making a Will is more than just signing a document. It is a process of organisation and forward planning to ensure all your possessions are disposed of in the way you want it, to the people you want, after your death. It is a way of putting your life into focus for the present and the future. Some situations are complex and some are simple. Either way, you need to assemble information on yourself, your assets, your liabilities and perhaps your requirements at the time of death. It is a process that forces you to organise your affairs but also gives you a basis from which to maintain that organisation.

Glossary of Terms

Assets

Total property, real and personal, belonging to the Willmaker

Beneficiary

A person who receives a gift or property from a Will

Beneficiary Listing

A table of beneficiaries and gifts bequeathed

Bequests

Gifts or allocation of property under a Will and can be Specific (particular item) or General (category of goods)

Codicil

An alteration or addition made to a Will in a separate document and executed in the same way as a Will

Estate

A person's assets and liabilities existing at time of death

Executor

A person appointed by a Willmaker to administer his/her Will

Grant of Probate

A Certificate allowing the Executor/Executrix to proceed with the requirements of a Will

Guardian

A person appointed to look after (have legal custody of) your minor children

Intestate

Not having made a valid Will before death

Letters of Administration

Where a person dies intestate, a document issued by the Courts allowing an administrator to distribute the intestate person's estate

Liabilities

Debts or monies owing

Personal Property

Property of a personal nature such as cars, jewellery, that can be moved

Probate

Certificate 'proving' that an Executor holds a valid Will and can proceed to distribute the Willmaker's estate

Real Property

Land or buildings

Residual Estate

All of a person's estate left after Specific or General Bequests

Testator (male ) / Testratrix (female)

A person making a Will – the Willmaker

Trustee

A person managing property or assets on behalf of other persons (usually minors) and for their benefit

Will

Document detailing distribution of a person's property after their death

Willmaker

Testator/Testratrix – a person making a Will

Witnesses

Two persons (adults) testifying that the Will was validly made and signed by the Willmaker

What is a Will?

A Will is a written document that sets out how the Willmaker (you) wants your estate (assets and personal property) distributed after your death.  It provides for an orderly disposal of your possessions at a time when people are grieving for the loss of a loved one.  It can be a document set out in general terms or contain detailed and specific instructions to allow for all situations.

Making a Will is a positive process of creating a legal documents that forces a person to identify: 

  • The Beneficiaries - the people and/or organisations (e.g. charities) who matter to you and how you want to provide for them after your death.
  • Your assets and liabilities - money and property you have acquired and debts you might owe at time of death. The Executor(s) - the person(s) you trust to carry out your instructions.
  • The Executor(s) - the person(s) you trust to carry out your instructions.
  • Other arrangements such as your funeral arranagements or organ donations.

 

 

 

At a time when you are physically and mentally capable of making lucid decisions it enables you to consider guardianship of minor children, provision for education of children or grandchildren, acknowledgment of help, of friendships and any other provisions that you would like.

A Will gives you a say in what will happen in the future.

Who makes a Will?

For the reasons listed above everyone over the age of 18 should make a Will no matter what their status or asset situation. It avoids unnecessary complications at a time of grief and lets you choose how you want your property to be distributed.

Marriage, Births, Divorce and Beneficiaries predeceasing you will affect your Will and would require a new Will to be made.

While de facto relationships are generally recognised by the law to be the same as a "marriage", it is important for people in such relationships who wish to specifically provide for a partner, to make a Will. If there is no Will the Courts will distribute your property to your next of kin. In New South Wales the qualification period before a partner is recognised as such is 2 years.

In New South Wales, gay and lesbian relationships are subject to the same rules as de facto relationships. This may be different in other states.

A person must be capable of making a Will and anyone who is illiterate, has trouble speaking or reading English or is visually impaired Will need further advice.

The requirements of a valid Will

The formal requirements of a Will are contained in the Wills, Probate & Administration Act 1898. Wills that do not meet these requirements may be rendered invalid and ineffective. The requirements are as follows:

The Will must be in writing.

Procedures that should be followed in order to avoid problems are:

  • The Will must be signed by the Will-maker (testator), preferably at the end. It is also prudent to initial the bottom of each page of the Will.
  • The Will must give the appearance that the testator intended by their signature to give effect to the Will.
  • The signature and initials must be witnessed by at least two people present with the testator at the time the testator signs or acknowledges the Will. It is recommended but not required that the witnesses are present at the same time.
  • The witnesses should not be beneficiaries or spouses of beneficiaries of the Will, or their entitlement may be lost.
  • The testator and witnesses should all use the same pen as evidence that they were all together when the Will was signed.
  • The Will should be dated before it is signed.
  • Any alterations to the Will should be initialled by the testator and witnesses.
  • Copies of the Will should be made and marked "Copy: Original kept at…" They should not be signed or they may be considered valid Wills.
  • An attestation clause should record that the formal requirements of making a Will have been complied with.
  • Ideally the Will should be in plain language rather than using legal jargon. It should however state that it is the Will of the testator, that previous Wills are revoked, and that the testator's property is to be distributed in a certain way upon his or her death.

Other important information:

  • Documents that do not conform to the formal requirements may be accepted as a Will if the Court is satisfied that the deceased intended the document to constitute his or her Will. Informal Wills are not desirable because applications to the Court are costly and there is no guarantee of success.
  • A Will made overseas Will be accepted in NSW if it is valid according to the law of the country where it was made.

List of assets and liabilities

Making a Will is part of the process of organising your affairs. Before you sit down to write a Will you should make a list of your assets and liabilities so you can identify what is available to distribute to your Beneficiaries. This document should form part of your personal papers to help the Executor locate assets and debts when the time comes.

The items and possible setting out follow. Obviously the more assets you have in each category, the longer the list.
 

  • Bank accounts – including bank, branch, account number, date and amount held.
  • Term deposits and bonds showing maturity date.
  • Real estate details including address, title details tenancy, property manager, mortgage details, and location of title.
  • Shareholdings showing company name, type of share, number, date acquired and location of share certificate.
  • Safe deposit box – similar details for bank accounts.
  • Motor vehicles, boats, caravans, etc. showing registration details, make and model of item, date purchased, approximate value and date and any loans outstanding.
  • Personal property – jewellery, antiques, collections, etc.
  • Insurance policies including policy number, amount, date, premium, type of policy and value.
  • Superannuation – similar details as for insurance policies.
  • Other documents and where these documents are located should also be included, as well as details of company registrations, business names, stamps etc.

Even though debts such as mortgages and loans are included with the relevant assets, a separate list of all liabilities could be set out as follows: 

  • Mortgage showing property details, amount, lending institution and relevant account number.
  • Credit cards including institution, account number, expiry date, amount outstanding.
  • Personal loans on cars, etc. showing lender, loan number, amount, payout date.
  • Personal guarantees, details of the amount, for whom, the institution it is lodged with.
  • Leases that will incur ongoing expenditure showing amount, item, expiry date.
  • Taxes including company, personal, land or provisional.

We would be happy to speak with you regarding making a Will.