What is a Will?

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Who can make a Will?

Anyone who is of sound mind and is at least eighteen years old can and should make a valid Australian Will. In special circumstances, other people may also be able to make a valid Will even if they are under the age of eighteen or otherwise lack competence.

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Who needs a Will?

Almost everyone needs a valid Will. Even for those people who are not married, have no children and who do not leave a large estate, there are advantages in making a Will to simplify the administration of the estate you leave.

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Can I write my own Will?

This may be possible, but this can be very dangerous. The laws in Australia are quite strict regarding what is and is not a valid Will. If your homemade Will is declared to be invalid, your property may go to people you did not want to have it. Even if it is valid, a do-it-yourself Will may be more open to challenge after you've died. Remember, you will not be around to explain to the Judge what you really intended.

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What will happen to my property if I die without a Will?

If you die without a valid Will, generally the laws of the State where you last resided will determine who should inherit your property, and how much each person will inherit. These laws can be complicated, depending upon your family situation at the time of death.

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What will happen to my children if I die without a Will?

If you should die without leaving a valid Will, either the Guardianship Board or a Judge will decide who should be appointed as the guardian of your minor children. Normally the guardian would be the surviving parent of the children, but it might be another relative or even a friend. Again, it will depend upon your family situation at the time of your death, and you won't be there to give your opinion to the Judge.

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What is Probate?

Probate is the process of a Court establishing that a Will is valid and represents the final testamentary intentions of the Testator. The Court then approves the final distribution of the deceased=s property according to the terms of the Will. There are time limits for a Will to be submitted to the Court for Probate after the date of the death of the maker of the Will. Generally sooner is better.

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Is it expensive to have a lawyer make my Will?

No. A proper Will can be surprisingly inexpensive, especially if a husband and wife prepare one at the same time. The real expense usually is in dying without a valid Will. That can possibly create a financial nightmare for the surviving family members. Almost everything the family will have to do after a death is more expensive to do without a valid Will. By spending a small amount of money now, you may save your family thousands of dollars and hours of frustration and aggravation later. The expense will vary depending upon your personal and business circumstances. You could think of it like paying to have someone prepare your tax return - greater complexity requires greater skill and time. Although most people only require simple Wills, it is very important that these be properly prepared.

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What information does my lawyer require to help my make my Will?

Your lawyer will need your family details, such as your current marital status, the names and ages of children, and other such information.

You may choose a guardian. This is the person who will take care of your children in case you and your spouse die before your children become adults. The guardian will raise your children and manage their money.

You also decide who your beneficiaries will be. These are the persons or organisations who will inherit your estate. Your estate consists of all the property you own, both real estate and personal property such as jewellery and automobiles. If you plan to leave property to your children, you will need to decide at what ages the children will actually receive the property they inherit.

You must choose at least one executor. This is the person or institution who collects your property, pays your debts and taxes and makes sure your property is properly distributed to your beneficiaries.

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