7 questions to ask your lawyer when making your will

  • 14 February 2023

If you have decided to make your will, you may already have an idea of what you want to include in it. But given that it is not something you do everyday, it is worth getting advice from an expert, like a lawyer, who writes wills everyday.

1. What should my will include?

Your will should cover what your specific wishes are for your assets, personal belongings and loved one. This may include:

  • What happens to your home and other property;
  • How any other assets you have (like shares, cash, vehicles or jewellery) are dealt with;
  • Who has the right to determine how your assets are distributed;
  • Any specific requests you have for your funeral; and 
  • Who will be responsible for any children under the age of 18 years of age.

Your will should also potentially consider what debts you have and how you want them to be managed. This may include:

  • Your home loan;
  • Any credit cards you have;
  • Your funeral costs; and
  • Any personal loans that you may have. 

To help you identify what to include in your will you may find it useful to write a list of all your assets, any people or organisations that you owe money to and anything that you believe is valuable or has sentimental or emotional value to you or a loved one. 

2. How can I make sure my children are looked after?

If you have children who are under 18 years of age you can appoint a guardian to look after them in your will if both their parents pass away. 

Who you choose to be your child’s guardian/s really depends on who you trust. Some people choose a close relative while others may appoint a friend. Some things that people often consider when choosing a guardian include:

  • What their lifestyle is like and how it will suit their child;
  • Who their child knows well;
  • If they have any children of their own; and 
  • Whether they have the financial and emotional means to look after a child. 

Regardless of who you choose, it’s a good idea to speak to them before you name them in your will, to make sure that they’re comfortable taking on the responsibility of looking after your child if you do unfortunately pass away.

3. What is an executor and who should I nominate in my will?

An executor is a person or people who are responsible for looking after your estate and making sure the instructions in your will are followed. You can choose any adult to be the executor of your will. Many people choose their partner, adult children or a close friend that they trust. If your family is a complicated one and there is potential for dispute, perhaps consider appointing an executor who is neutral. 

The role of an executor comes with many responsibilities and can be time consuming. So it is a good idea to ask the person you ar planning on appointing beforehand to make sure they’re comfortable with it.  

If you cannot think of anyone who could be an executor of your will you can appoint a paid independent executor. There will be a charge for this but the fees will be paid by your estate (leaving less to be distributed to your beneficiaries). 

4. Who should be my beneficiaries?

Your beneficiaries are the people or organisations that you want to receive your assets and personal items. They may be loved ones, charities or even your pets. Whoever they are, you will need to make sure you have provided enough details in your will so they can be identified and contacted. 

You may want to give some beneficiaries individual items or specific assets, which you can specify in your will. For others, they may receive whatever remains of your estate once all your expenses and debts are paid, this is called your residuary estate. 

5. How will my estate be distributed?

Generally, you can decide which beneficiaries receive which assets in your estate by specifying this in your will. You may choose to give some assets to some beneficiaries or leave the entire estate to one or more people, in which case the executor will decide how the estate is distributed. 

However, there are some assets that may be legally required to be distributed in a particular way. For example, if you own a house with your partner then how that is distributed will depend on the type of title you have. If the item is ‘jointly owned’ then your partner will automatically be given the entire property, but if you are ‘tenants in common’ then you can decide how your percentage of the property is distributed in your will.  

6. Can anyone contest my will?

Under Victorian law only certain people have the right to contest a will. These include:

  • Your current partner;
  • A previous partner if family law proceedings have not been finalised; 
  • Your children;
  • Your registered carer;
  • Your grandchildren;
  • Any other member of your household; and
  • Anyone else who believed they were your child or you treated them as if they were your child.

If anyone wants to contest your will they will need to provide that you had a moral duty to provide maintenance and support for them and that your will does not do this. 

7. Where should I store my will?

Once you make your will it is important that your executor knows where to find it because they will need the original will to finalise your estate. You can keep the will somewhere safe or ask your lawyer to store it for you. 

Planning your will can be difficult and emotional, but MNG lawyers can help make the process simple for you. We take the time to listen to you, explain the law in plain English and make sure your wishes are set out in your will. We will also keep your best interests in mind and give you peace of mind so you don’t need to worry about what happens to our loved ones when you die.  

Contact a MNG Lawyer

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