The principal legal means available in Australian law for a person to redistribute property on death is a Will.

You should make a Will even if you think you have little to leave. If you do not make a legal Will, your estate will be distributed using a fixed formula determined by the government. This formula is applied regardless of your situation.

What is a Will?

A Will is a legal document that sets out how your property is to be divided after your death. Under the Will, an executor is appointed who will look after your estate. The executor must:

• Collect all your assets.
• Pay all your debts.
• Distribute your estate in accordance with your Will.

Legal Wills do not come into effect until after you die, so it is important that you think carefully about your Will.

See information on standard and non-standard Wills.

How do I make sure my Will is valid?

The laws governing the legal requirements for preparing a valid legal Will vary from state to state. However, in all states you must:

• Have testamentary capacity, which means you must be over 18 years old and understand what you are doing;
• Ensure that your specific wishes are in writing – verbally telling someone what you would like to happen is not enough, and
• Have the document signed in the presence of two witnesses in order for your Will to be valid.

Why should I make a Will?

If you do not make a legal Will, your estate will be distributed using a fixed formula determined by the government. This formula is applied regardless of your situation. However, if you make a Will:

• You can decide how to divide your estate between family, friends and charities;
• You can appoint who you wish to administer your estate;
• You can indicate you preference as to a guardian for your children.

Updating your Will

We advise clients to review their Will every 5 years or so or when something significant happens in life, like a house purchase, or marriage or children for example. We ensure copies of all signed Wills are stored electronically, so they can be easily be found and updated if needed.

What happens if I do not have a Will?

Without a current Will, there is no guarantee that your assets will be transferred on your death as you want. By leaving a current Will your wishes are known.

Without a Will, the state government's legislation for distributing assets will apply. If you have no family as defined by that legislation, your assets will go to the government.

Executor under a Will - What are my duties?

As an executor under a Will, you will be responsible for the administration of the estate of the deceased and for the distribution of their assets to the beneficiaries under their Will.

The duties of an executor can include:

• Attending to funeral arrangements
• Identifying the assets and liabilities of the estate and whether or not the estate is solvent
• If required, applying for and obtaining a grant of probate
• Preparing and executing the necessary documentation to access assets
• Paying debts, expenses and duties
• Preparing tax returns
• Protecting business interests
• Realising assets and transferring them to the beneficiaries in accordance with the will
• If required, the ongoing trusteeship of minor's trusts and life tenancies

If you are an executor under a will and we act for you in applying for the grant of probate and administering the estate, we will give to you a copy of our comprehensive brochure about your duties as an executor.

Why should I use a lawyer to prepare my Will?

A lawyer will ensure that a Will is prepared to reflect what you want to happen after you die with the assets you own and also advise on other matters such as tax consequences of your will and any family provision claim concerns.

Wills can be very simple and also very complex and anything in between depending on your circumstances.

A well-drafted Will can help with any of the following:

• Give your surviving spouse and each child the option to access tax advantages through a tax effective and flexible trust that comes into existence on your death;
• Protect assets given to a child where the child becomes a bankrupt;
• Protect assets given to a child where the child is later divorced;
• Protect assets given to child where that child suffers a disability;
• Protect assets given to child where that child has a problem, such as being a spend thrift, drugs or gambling;
• Make an allowance for capital gains tax that may result from leaving a gift to a charity or non-resident child etc.

The points that mention a spouse can equally apply to a de-facto relationship.