FAQs

A Will is a legal document that sets out how and to whom a person's property is to be distributed after their death, and who is to administer that process as executor.

Generally, a person must be at least 18 years old and of sound mind to make a valid Will under the Succession Act 2023 (SA). In limited circumstances a court may authorise a Will for a person who does not meet these usual requirements.

Almost everyone benefits from having a valid Will, even those without a spouse, children or a large estate, because a properly prepared Will simplifies and reduces the cost of administering an estate.

It is legally possible, but home-made and DIY “kit” Wills carry significant risk. The formal requirements under the Succession Act 2023 (SA) are strict, and a Will that fails to meet them can be declared invalid or become vulnerable to later challenge.

All kit Wills contain disclaimers stating they are no substitute for legal advice. Minor errors in execution or wording can render the document invalid, or leave it more open to a successful challenge after death, when the Will-maker is no longer available to explain their intentions.

No. Trustee companies commonly offer a free Will on condition that they are named executor, then charge a percentage-based commission to administer the estate later — often amounting to many thousands of dollars more than a specialist lawyer would charge for the same work.

A properly prepared Will is often surprisingly affordable, particularly when a couple prepares their Wills together. The far greater expense typically arises from dying without a valid Will, or with a poorly drafted one.

Dying without a valid Will is called dying ‘intestate’. The estate is distributed according to the statutory formula in the Succession Act 2023 (SA), which prioritises close relatives such as a spouse and children in a fixed order, and does not account for personal wishes.

Generally no. The intestacy formula under the Succession Act 2023 (SA) benefits specified categories of relatives only; friends, charities and other people or organisations you might wish to benefit cannot inherit under an intestacy.

Without a valid Will nominating a guardian, the question of who cares for your minor children may need to be decided by the South Australian Civil and Administrative Tribunal (SACAT) or a court, based on the circumstances at the time.

Your lawyer will typically need your family and marital details, the names and ages of your children, your choice of executor(s), your choice of guardian for minor children, and details of your intended beneficiaries and assets.

An executor is the person or persons appointed under a Will to administer the estate after death — collecting assets, paying debts, and distributing what remains to the beneficiaries.

Yes. It is common, and permissible, for a beneficiary under a Will to also be appointed as executor.

A testator is the legal term for a person who has made a Will.

A beneficiary is a person or organisation who receives a gift under a Will, Trust, superannuation nomination or insurance policy.

A trustee is a person or company appointed to hold and manage assets on behalf of another person, such as a gift left to a minor child under a Will, until that beneficiary is old enough to receive it outright.

A testamentary trust is a trust established within a Will that only comes into existence upon the testator's death, allowing assets to be held by a trustee for the benefit of a nominated beneficiary rather than being distributed outright.

Testamentary trusts can offer asset protection for a beneficiary from creditors, relationship breakdowns or their own vulnerability (for example, difficulties with money management), and may also provide taxation advantages depending on individual circumstances.

A Will should generally be reviewed every five to seven years, and immediately following any major life event such as retirement, marriage, divorce, the birth of a child, a significant inheritance, or the death of a beneficiary or executor.

Yes. Under the Succession Act 2023 (SA), marriage generally revokes an earlier Will unless that Will was made specifically in contemplation of the marriage.

Divorce can affect certain gifts and appointments in a Will, but does not automatically revoke the whole document in the way marriage does. A Will should always be reviewed promptly after separation or divorce.

Not by simply writing on or amending the signed document. Any change must be made formally, either by a codicil or by preparing a new Will. Informal alterations can invalidate the affected clause, or in some cases the whole Will.

A codicil is a formal legal document that amends specific provisions of an existing Will without revoking the whole document.

A Will generally contains a clause revoking all previous Wills, so the most recently executed valid Will supersedes earlier versions.

Yes. Superannuation does not automatically form part of your estate and cannot simply be left to whomever you choose in your Will. Superannuation Death Benefit Nominations have their own legal requirements and should be reviewed as part of a coordinated estate plan.

Yes. Modern estate planning increasingly needs to address digital assets such as online accounts, cryptocurrency, photos, and digital business records, since these may otherwise be inaccessible or overlooked by an executor or an agent under Power of Attorney.

Blended families often require more careful planning, such as testamentary trusts or life interests, to balance provision for a current spouse or partner against children from a previous relationship, to address the risk of a family provision dispute.

Yes. Directors carry potential personal liabilities relating to company taxation and superannuation obligations, and their estate plan should specifically address business succession and these exposures, not just personal assets.

Animals cannot directly inherit under Australian law, but a Will can include a trust arrangement directing a trustee to apply funds for the ongoing care of a pet, coupled with a gift to the person who takes on that care.

Property held as joint tenants generally passes automatically to the surviving joint owner by survivorship, outside the terms of the Will — sometimes referred to informally as a ‘poor man's Will’. This differs from property held as tenants in common, which does pass under the Will.

Yes. A carefully designed testamentary trust or Special Disability Trust can safeguard an inheritance, provide controlled management, and help preserve access to relevant government support where applicable.

The Succession Act 2023 (SA) requires a Will to be written and executed by the Will-maker in the presence of two witnesses who are together at the time. Specialist advice helps ensure the document reflects the Will-maker's intentions and satisfies the formal requirements.

Any adult with capacity may witness, provided both witnesses are present together when the testator signs. Witnesses should preferably not be beneficiaries or spouses of beneficiaries, as this may lead to complications later.

Costs vary by complexity. A straightforward Will from a specialist lawyer is a sound investment for your family, and typically ranges from several hundred to around a thousand dollars; complex estates, trusts, blended families and other documents attract higher fees reflecting additional drafting and advice.