Our will lawyers can help you make sure your family is looked after when you’re gone.
What is a will?
Your last will outlines your final wishes before you die. Your will can set out who you would like to have your property and money, what you want to happen at your funeral, and if you want to leave any assets to a specific charity. You can also include details about who should look after your children if they’re under 18 and set out when your children can have access to your estate.
It’s important to make a will so that your executor can carry out your wishes. If you don’t make a will, the distribution of your assets will be determined by legislation and your estate may not go to the people you want it to.
What to consider when choosing a structure
Anyone over the age of 18 can make a last will and testament if they’re of sound mind. There are several things that you need to make sure your will has for it to be legal and that your wishes are included:
- It must be in writing;
- You must intend for the document to be your will and be writing it freely and voluntarily;
- Before writing your will it’s a good idea to list out all the property and assets that you have. This should include things like your superannuation, cash, land, jewellery and any other items of sentimental value. You should also include any business interests or assets you have and any debts that you owe, like credit cards and loans;
- You will need to nominate someone to make sure that your wishes are followed through. This person is called an executor and you can have more than one. Choose your executor wisely as they may need to deal with a lot of legal and family issues;
- You must also choose who your beneficiaries are. Beneficiaries are the people who you want to have your property, assets and belongings after you pass away. You may want to be really specific about which asset goes to which person, or you may choose to give everything to one or two people, it’s up to you. You can also choose to give some or all of your assets to a particular charity or a range of charities if you’d like;
- There are many different ways that you can leave your estate in your will. For example, if you have young children you may not want them to access any property or assets until they’re older;
- If you have young children, you may want to include in your will who will look after them when you pass away. This person would be their legal guardian and have responsibility for taking care of your children until they’re 18;
- If you’d like to make an organ donation or would like your funeral to be carried out in a specific way, you can also outline these in your will;
- Once you’ve finished making your will, it must be signed by you on each page and witnessed by at least two people who are not mentioned in the will; and
- Make sure you keep your will somewhere safe. You don’t have to show anyone your will, but you do need to tell people you trust where they can find it after you pass away.
There are specific rules about how a will needs to be written, and if it’s not done correctly it may be invalid or able to be contested. That’s why it’s important to have a lawyer write your will or review it for you. Our will lawyers are located in Melbourne and Ballarat and can help you protect your assets.
Updating a will
Life can be unexpected. You may get married, divorced, have children or buy new properties or assets. Any change to your personal or financial circumstances may affect what your wishes are when you pass away. That’s why it’s important to make sure your will is kept up to date and that you are still happy with who you have appointed as executor of your will and guardian of any children you may have.
There are also special rules around how you can update a will legally. You can’t simply cross out some details and add others in your own handwriting. Our lawyers can help you update your will legally and make sure that you’ve addressed all the issues you need for your new circumstances.
Probate & wills
After you pass away your executor may need to prove that your will is valid. They may not be able to give some of your assets to your beneficiaries without this. To prove your will is valid, your executor may need to apply for probate. This involves going to court and proving that this is your last valid will.
There are specific rules that determine whether your executor needs to apply for probate, and these can vary depending on the type of assets you have. Our wills and probate lawyers can help your executors apply for a grant of probate so they can then fulfill your wishes.
Dying without a will or intestacy
If you don’t make a will, you won’t be able to have a say in who gets your property, assets or even your children. Passing away without a will is called dying intestate and there are specific legal rules that guide this situation. Those rules will dictate who has rights to your property and assets, and who will be the guardian of any children you have.
Dying intestate can be very stressful for your loved ones. If you have a valid will in place you can choose your own executor and beneficiaries, and save your loved ones from emotional turmoil and potentially legal costs if they want to claim any of your assets.