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A Last Will & Testament is the only way to ensure your wishes are followed after your death. While it’s probably the most important document a person will ever make in their lives, only about half of Australia’s adult population (48%) has one, according to comparison site finder.com.au.
Making a Will isn’t as complicated as some people may think. You don’t need to pay a solicitor to make one and there is no official document that needs to be filled in. To make a legal Will, your wishes just need to be clearly stated in writing and the document must be signed by the Will-maker and two witnesses.
This article can be used to help you make your Will.
What is a Will?
A Will is a legal document outlining your final wishes about how your estate will be distributed after your death. Your estate includes your assets such as cash, property and personal effects. Your Will is a legally binding document that outlines how these things will be distributed.
What if there is no Will?
If you die without a Will (or pass away with an invalid Will), this is called ‘dying intestate’.
In this case, certain laws of intestacy apply and your assets will be distributed by default to your family – but perhaps not in accordance with your wishes or preferred allocation.
To avoid unnecessary confusion, fees, delays and family feuds – get a Will!
How to make a Will in 7 easy steps
When making a Will, you need to make some personal decisions.
Step 1: Choose beneficiaries
A beneficiary is the person or people named in a Will, to be gifted items, or receive an inheritance, from an estate when someone dies. A beneficiary does not need to be an individual – it can be a person, group of people, or an organisation.
Step 2: Appoint an executor
Once you have decided on your beneficiaries, the next step in making a Will is appointing an executor.
An executor of a Will is responsible for carrying out the terms of your Will after you die and taking ownership of your estate. The executor is also in charge of distributing the assets to the beneficiaries as per your Will.
Step 3: Appoint a trustee (if required)
If you are leaving assets in a trust, you will need to nominate a trustee to manage the account. A trustee may be the same person who you appointed as your executor.
Step 4: Appoint a guardian (if you have young children)
If you have children who still require parental care, appointing a guardian (or guardians) guarantees that your guardianship wishes about who will care for them if you pass away as their only surviving parent are extremely clear.
It is important to note that while a Will is a legal document, guardianship under a Will is considered a wish and is not necessarily binding.
The trustee may either be the same person you appoint as guardian of your children, or someone else entirely whom you trust with this responsibility. The nominated trustee can administer any money or trust fund you’ve allocated to care for your children or dependants.
Step 5: Sign your Will with a witness
A Will is not a valid legal document in Australia unless it’s signed by the Will-maker in the presence of two witnesses.
It’s important to remember to not date or sign the document until the witnesses are present and are watching you do so in front of them. They do not need to know the contents of the Will.
You don’t need anyone official, like a Justice of the Peace, to bear witness to your Will. Witnesses just need to be 18 years old or over and physically present at the time of signing.
Step 6: Keep your Will in a safe place
Your Will does not need to be lodged or submitted anywhere. Just ensure you make one! Keep a copy in a safe place and give another copy (or the original) to your executor or solicitor.
After your death, your executor must be able to easily find your original Will, so you will have needed to store it someplace secure but accessible.
Storing your original Will at your bank, rather than at your home, keeps the document safe if the property is destroyed by fire. Banks usually hold Wills in a safe deposit box or envelope. Storing your Will at the bank also allows you to keep it with any mortgage documents you might have there.
Step 7: Update your Will with significant life changes
Your Will shouldn’t be a ‘set and forget’ document. Ensure you update your Will as soon as possible when your circumstances change, particularly with new relationships or previous relationships ending.
Bare's team of estate specialists are available to offer probate and estate administration services to suit your needs.
To learn more, visit the Bare Law website or chat with our estate team for a free consultation, on 1800 959 371.
This article is not legal advice. You should chat with a legal professional for specific advice on your personal or financial situation.
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