Do I need a lawyer to write my will?
No. You can write your own will by fulfilling the legal requirements of identifying yourself, appointing an executor, naming at least one beneficiary and what you are leaving to them. You validate the will by signing it in the presence of two independent witnesses, who also sign their names.
Why do I need witnesses to my will?
The law requires that two witnesses sign in your presence to validate the will. This makes clear that it is your will, that you are signing voluntarily, that there are no irregular occurrences, and that you appear competent to sign the document.
Who can witness a will?
Any two competent adults over the age of 18, except they cannot be named executors or beneficiaries to the will.
Are online wills legal?
A will prepared online but printed out and signed & witnessed correctly is fully legal and valid.
What happens if I die without a will?
This is called an “intestate” estate and must follow the process to legally administer and settle it. This involves certain legal and other costs, definite delays in inheritance, probably considerable distress, and likely family conflict.
How does the INTESTACY process differ across states and territories?
The intestacy process differs by state and territory. For example, if a person dies in WA without a will their spouse or partner receives the first $50,000 from the estate plus one third of the remainder. The children (if any) get the remaining two thirds. However, if someone dies in NSW, VIC or TAS the spouse or partner receives 100% of the estate, with the children receiving nothing. It’s pretty clear that this can cause difficulties for families depending on where they live and the circumstances of their loved one’s passing.
How will my assets be distributed if there is no will?
Strictly according to the intestacy laws of the state or territory in which you live. That differs by state – see the previous question. Your assets and possessions will go to direct family and relatives in a strictly defined sequence. This means that no third party, for example a charity, can receive anything unless they are named in the intestacy formula of the particular state in which the deceased had lived.
Can my family claim my assets?
Your family will inherit your assets rather than “claim” them. The intestacy laws clearly lay out who gets what, and there is no deviation from these formulas (which differ by state or territory) as they are legal stipulations.
Can I include a pet in my will?
You may leave a bequest to ensure that a pet is looked after but if this is anything more than nominal it is best to consult with a specialist lawyer.
Can I edit my will?
You may use our online system to update or amend your will but it must be signed and witnessed in order to validate it again. After a will is legally finalised you should not make any alteration to it without going through the full process of signing and witnessing. Failure to do this is likely to invalidate or create ambiguity, neither of which will assist your loved ones or heirs after your passing.
Remembering a charity in my will
If you wish to leave a gift to charity or any good cause you may do so in your will. However, remember that a charity cannot be left anything UNLESS it is specified in your will.
Can I cancel my last will and testament?
You can revoke your will by writing a new one, destroying the old one, or declaring in writing that you revoke it.
Does a married couple need two separate wills?
Married or not, a couple consists of two individual people and a will is a personal and singular document. It is quite normal for married (or de facto) couples to “mirror” each other’s wills, but there is no requirement to do so. You may include or exclude whatever you wish in your will, and you do not need to disclose this to anyone if that is your preference.
When do I need a new will?
Every adult should have a will from the age of 18, though for the vast majority of people that will won’t be needed until they pass on at a hopefully very old age. Having said that, once a will has been made it should be kept up to date regularly. There are dozens to reasons to update your will, including: commencing work, starting super, getting married, having babies, buying a home, investing, giving to charity, buying or selling a business, getting divorced or separated, kids reaching adulthood, retiring, moving overseas, etc.
Do adopted children have the same rights as natural children?
Yes. There is no difference under inheritance law between children born to a will-maker or his/her partner, and those adopted.
Wills and step children
All natural and adopted children have equal rights but stepchildren’s rights can vary by state. These rights may depend on whether the relationship was in place at the time of death of the step-parent, but can also be affected by whether the children are dependent on the step parent. The nature of blended families means there are many factors to be taken into account but a will-maker’s wishes can be made very clear if they are recorded in a will. In addition, the will should be reviewed and updated regularly to ensure it reflects the actual family situation and the will-makers intentions.
How do I appoint legal guardians?
The simple process is to name them in the will. It is normal to name one or two guardians for a will-maker’s children if they are under 18 at the time of death. However, it is important that the nominated guardians’ agreement to act be obtained as they do have the right of refusal.
How do I store my will?
It is recommended that your will be stored where it can be found by family, heirs and executors when the time comes. For many people this might be straightforward as it may be kept with all normal personal and financial documents – passports, super & investment details, bank info, etc. However, if you are not that organised it is recommended that you place the will in a sealed envelope stating that it is your last will and testement, then put it in a safe place, and inform family, heirs and executors where it is kept.
I have a large/complicated estate
Our solution is designed for the average person who intends to leave their worldly possessions to direct family, perhaps with some gifts to others (e.g. charity), appoint guardians if applicable, leave funeral and organ donation instructions. If your needs are beyond these we recommend you consult with a specialist lawyer.
When will I receive my will if I use your solution?
We enable you to use all functions of the system until the point that you are happy it is the right solution for you, so you only pay before the legal document is generated. Until that point you may enter details of any executors, all beneficiaries, possible guardians, funeral arrangements and organ donation. We present you with a clear summary of your wishes before you are asked to pay, so you can be certain that the system has generated the correct will for you.
Who can be an executor?
An executor can be any competent adult you trust to administer your will after your passing. It can also be a professional such as a lawyer, or it can be an incorporated body such as a law firm. In a great number of situations spouses or partners will be each other’s executors, and adult children are commonly appointed. The executor should be trustworthy and capable, and be in a position to fulfil the duties of the appointment. At all times the executor must act in the interests of the estate.
I just moved to Australia. Do I need a new will?
This very much depends on your personal circumstances. If all of your possessions and assets are in Australia it is sensible to make a will under Australian law. However, if you have assets and possessions overseas it might make sense to have one will to cover those in your home country, and another will for Australian assets. Both wills might have the same beneficiaries, for example your spouse/partner and children, but administration might be easier if two wills cover two jurisdictions, especially if the systems of law are quite different.
What can I include in my will?
Any asset or possession, whether valuable or not. An estate is settled by first paying off any debts, for example mortgage or credit card. After that specific gifts are distributed, followed by a division of the remainder in percentage terms. This means that everything owned by the will-maker is included whether named or not. However, you may wish to take care when thinking about leaving personal items, heirlooms or family keepsakes to your heirs. Perhaps you have a specific item of jewellery that more than one person might hope to inherit. Unless you name the person who should receive this the executor will have to make the decision if the heirs cannot agree among themselves.
What should I exclude from my will?
The answer to this question follows the answer to the last one. You do not have to specifically include or exclude anything as all possessions are included in the remainder or “residual estate”. However, items that are naturally excluded from a will are any asset held legally in joint names (the survivor gets title), or any superannuation or life insurance policies that have valid nominated beneficiaries. Such nominees take precedence over the will if up to date.
What relationships are recognised in a will?
A will expresses a will-maker’s wishes… in legal terms his or her testamentary intentions. Therefore the will-maker is entitled to leave their possessions to any person or body they wish. Such beneficiaries do not have to be direct family, but the law recognises that family has a claim on an estate of a parent or if they are dependent on that family member. Our solution is designed for those who intend to leave possessions to their family, loved ones, perhaps small gifts elsewhere, and to leave funeral and organ donation instructions. Should a will-maker wish to leave major assets outside of these parameters we strongly recommend consulting with a specialist lawyer.
One other relationship that should be noted is that of “spouse” or “partner”. The law does not differentiate between married spouses and de facto partners, but care needs to be taken in the latter case. A marriage starts on a defined date and is registered, as is divorce if applicable. There is no ambiquity as to whether a deceased person was married or not. However, it is not so clear when de facto relationships start of finish as no registration or formal record might exist. It is best to be clear in the will regarding such relationships and to ensure the will is up to date.
How much does a will normally cost?
Wills have traditionally been prepared by lawyers, and therefore law firm pricing has been the norm. Preparing a will for one person usually involves two visits to a solicitor’s office, consulting with a senior lawyer, drafting by a junior lawyer, and support from secretaries, paralegals or administrators. Thus the cost varies from several hundred dollars to more than $1,000. Quite often a couple will want to make their wills together, and if complementary documents such as powers of attorney, enduring guardianship, and advance care documents are included it is feasible that the whole suite might run to $2,000 or $3,000.
In comparision our solution costs 10-15% and enables a will-maker to manage their will and complementary documents over a lifetime. Our solution is more convenient, simpler, fully legal, easily managed, includes automatic review reminders, enables notice to be given to heirs and executors that a will exists, and significantly improves security and reliability.
It is the best value for money solution for will-making on the market.