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Writing a legal will

Preparing your will is the first, and most important part of planning ahead your end-of-life journey.

What is a will?

A will is a legal document that you can put together yourself, that outlines how you would like your estate distributed after you pass away.

Your estate can be defined as the total balance of all your assets and debts at the time of your death. If you own property such as a house, a car, furniture, shares, superannuation or other items of value, this will be balanced against any debts you owe. Once the debts are paid, then the remaining assets are distributed according to what is prescribed in the will.

You can also include wishes in your will about who you want to care for your children after you pass away and your burial wishes. Whilst these are not legally binding, your wishes should be taken into account when executing your will.


Why make a will?

Your will is often your last message to your loved ones and serves important legal purposes.

If you don’t have a will, your estate may not go to the people you intend it to.

Therefore, a legal will provides you with the assurance that your estate will go to your loved ones, the people or charities you intend it to.

“The cost of having a lawyer make your will is usually less than the cost to resolve issues with a will that is not properly made.”


What are the benefits of writing a will?

An up-to-date, well-written legal will provides you with assurance that:

  • Your family will be financially provided for after you pass away;

  • you know who will care for your children;

  • your assets will go to who you choose;

  • the people managing your estate know how you want things done; and

  • Your estate can usually be quickly settled.


What’s the difference between a legal and emotional will?

An emotional will is not a legally binding document. A legal will is about distributing your assets and material possessions after death. An emotional will is a way for you to share your thoughts, values, lessons in life, passions, hopes and dreams with your children, friends and future generations. It is your chance to ensure that you don’t leave this life with things left unsaid.


When can I, or should I make a will?

You can make a will once you turn 18 years old, marry under that age, or with court permission. However, you need to be able to understand and be cognitive to what you are doing. Otherwise, your will may not be legally binding.


What happens if I don’t have a will?

If you die without a current will, the law will decide what happens to your estate. This may mean that your estate is not divided how you wish or intend it to. You risk your estate being distributed in accordance with an old will or going to court where they will appoint an administrator to distribute your estate following legal rules known as the rules of intestacy. That means your assets may go to:

  • Your spouse or domestic partner, children or parents, or more distant relatives, or

  • If you have no relatives at all, your property will go to the State.


How do I make a will?

There are many different things to consider before making a will, including who will be your executor, or who you want your estate to go to. It is suggested to get some professional legal help if this is your first time writing a will to ensure that it is valid and that you consider all legalities.

Some things you need to think before making a will include:

  • What assets do you own, either in your own name or with other people?

  • Who will be your executor?

  • Who do you want to leave your estate to?

  • Who might claim to have rights over your estate?

  • If you have young children, who will be their guardian?

  • Do you want to leave money to charity?

  • Do you want to make an organ donation?

  • What are your funeral and burial wishes?


Getting help writing your will

Although you can make a will by yourself, it is recommended to get expert legal help if it is your first time writing a will, or if you:

  • Have children or other beneficiaries with special needs or disabilities;

  • have many assets, assets in another country or complicated assets;

  • want to leave someone out of your will who may be entitled to benefit;

  • want to include a trust of any kind in your will, have an interest in a family trust, private company, superannuation fund or partnership;

  • have intellectual property rights, such as patents, licenses or copyright in a book, or other rights which will continue long after you die;

  • are ill, in hospital or advanced in age when you make your will; or

  • have been previously married or in a domestic relationship or you or your partner have children from previous relationships.


Getting started writing your will