How to set up a Will

While 40 per cent of Australians do not have a Will, most of this group (54 per cent) are planning to make one.  

Procrastination is the main reason for not having a current Will, yet the actual process of creating a Will is not as difficult or daunting as it sounds. Preparing a legal Will is the best way to ensure that when we pass away, our family and loved ones are looked after.

What is a Will?

A Will is a legal document that sets out how your property and possessions are to be divided after your death. Creating a valid Will places you in the best position to ensure that your assets are distributed in accordance with your wishes.

It is up to you to decide who will receive your assets; however, you do have a general obligation to provide adequately for your spouse or de facto partner, your children and any other dependents. If you fail to provide for them in your Will, they can bring a claim against your estate.

How do I create a valid Will?

The first step you should take is to consult with a lawyer with expertise in Wills and estates. A lawyer can assist you to ensure that your wishes are adequately expressed and that your Will is valid according to law.

You can choose an online or postal ‘will kit’; however, it may be difficult to know whether you have included all the necessary information and details in your Will. You also won’t receive the benefit of legal advice about the manner in which you have chosen to distribute your assets and any risks associated with your decisions.

The laws governing the legal requirements for preparing a valid legal Will in Australia vary from state to state; however, in all states, for a Will to be valid, there are some basic requirements:

  1. You must have testamentary capacity, which means that you must be over 18 years old and understand what you are doing.
  2. Your Will must be in writing (whether handwritten, typed or printed).
  3. Your Will must be signed, and two witnesses (over the age of 18) need to witness your signature.
  4. Those witnesses must also sign the Will.

The relevant information contained in your Will is likely to include:

  • names and details of your chosen beneficiaries
  • names and details of your executor/s and/or trustee/s
  • details of the allocation and division of your property and possessions, and
  • details of any guardianship clauses for children; this is particularly relevant to same sex couples, as the right to guardianship varies across Australia.

There's no need to file it with any particular organisation, but once you've signed off on it, make sure you keep it in a safe and accessible place.

The role of executor and trustee

When you make a Will, you will need to appoint an executor to look after your estate when you die. The executor must:

  • collect all your assets
  • pay all your debts, and
  • distribute your estate in accordance with your Will.

An executor is like a liquidator who winds down the business you conducted throughout your life. A trustee (this can be the same person as the executor) is often appointed to administer any trusts set up in the Will; this scenario usually occurs when you leave assets to people under the age of 18.

When choosing an executor or trustee (and you may choose more than one), you should ensure that they are comfortable taking on the responsibility and performing the role. It is often wise to appoint someone younger than you, or to nominate reserve beneficiaries, in case the people you have appointed die before you do. You can also appoint a public trustee to do the job for you.

You should keep in mind that a Will is never a static document. You will probably tweak it throughout your life, particularly when your circumstances change significantly; for example, due to marriage, divorce or the death of a beneficiary. Above all, get the process moving – work out your priorities, chat with your loved ones and seek out the help of an experienced lawyer to guide you along the way.

Andrew Simpson is a Principal in Maurice Blackburn's Melbourne office.

TOPIC: Will disputes
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Andrew Simpson

Maurice Blackburn Melbourne
When it comes to challenging or defending a Will, Andrew Simpson is the lawyer you want fighting for you. He is a Principal and the head of Maurice Blackburn’s national Wills and Estates Law practice, based in Melbourne. Andrew has 20 years’ experience as a lawyer and for the past 18 of these years he has practiced in Wills disputes and estate planning, so he understands the many sides to estate law. Andrew is so passionate about this area of law that in 2012 he wrote the plain English guide to estate planning, You Can’t Take it With You. Andrew works exclusively in Will disputes at Maurice Blackburn, helping clients fight for their rightful entitlements every day. He is a very approachable, compassionate lawyer who has an ability to build an easy rapport with his clients. “My early life as a lawyer was spent assisting clients with estate planning issues,” says Andrew. “This advice often involved advising clients on the extent to which their Will was at risk of a challenge. I developed a deep understanding of the issues that gave rise to a right to challenge a Will. I then began assisting people who were unfairly treated by being cut out of the Will or getting a smaller benefit than they believed was owed to them. “The most rewarding part of working in Will disputes is being able to help people obtain access to estate funds in circumstances where they are in financial need. This is life changing for most clients.” Andrew holds Bachelor degrees in Arts and Law, and a Masters in Law. He was awarded the Churchill Fellowship in 2004, and visited Canada, the United States and the UK to examine international approaches to estate planning and elder law. “I am driven because I know that I can use the law to significantly improve a client’s quality of life,” says Andrew. Accreditations & Memberships Law Institute of Victoria member Society of Trust and Estate Practitioners member ...

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