4H. Wills

A will is a written and signed document that provides for the distribution of a person’s property and assets on that person’s death. The will sets out who gets part or all of a person’s property when they die. Your assets are called your “estate” in a will.

Remember that a will is only for assets in your name or property you own as tenants in common, not for jointly owned assets such as property, bank accounts and shares.

The most important reason for making a will is to ensure that, after your death, your assets are distributed in the way you want them to be. A will provides certainty that subject to any challenge to the will, “the right assets go to the right people, at the right time”. Your will can also specify who will act on your behalf in carrying out your directions specified in the will (the ‘executor’) and your preferred funeral arrangements. The executor can be anyone over 18 you trust to do the job, including one of your relatives or adult children. The executor can also be a beneficiary of the will.

If you do not leave a will, your property will be distributed in a way set out by the law. When a person dies without leaving a will, they are said to have died “intestate”. If you die intestate or your will is invalid, an administrator is appointed by the court. The administrator can be anyone interested in your estate who makes an application to the court. Once appointed, the administrator pays your bills and taxes from your assets, and then distributes the remainder based on a predetermined formula, which may not be how you intended your assets to be distributed. If you die intestate and don’t have any living relatives, your estate is paid to the State Government.

A valid will must be in writing and signed (executed) and witnessed by two people over 18. It should also be dated at the time of signing. For more information on how to make a will and who can be a witness to it, see Citizen’s Advice Bureau Make A Will or Make A Will factsheet.

If you want help making your will, you can seek private legal advice or contact the Public Trustee (Department of Justice) to book a Will appointment.

• who you would like to nominate to look after your children if they are still below the age of 18 when you die?
• how your estate should be distributed. Including who should receive items or assets?
• who should be your executor to administer your estate?
• are there sentimental items you wish to gift to people?
• do you want any trusts established?
• do you wish to donate money to charities?
• what are your funeral instructions, which may include organ donation?

Keep it updated as your assets and/or circumstances change.

The best way to make major changes is to make a new will. Otherwise, you may add a codicil to your previous will. A codicil is a document that is used to alter something in an earlier will and must comply with all the legal rules that apply to a will.

Do not physically alter the original will. Removal of staples, for example, may void the will.

Keep your will in a safe place, for example, The Will Bank or an easy-to-locate box with all your essential documents. Some accountants and lawyers will keep your will for you.

Tell someone trustworthy where your will is located. A trusted friend or family member, your children, or the person you have nominated as an executor.

When two or more people own an asset such as a home, they might own it jointly or as tenants in common. In both cases, each person owns a share of, or interest in, the whole property and the property is shared. However, there are important differences with respect to what happens when you die:

• Assets owned jointly with another person (or people) are not covered by your will, as ownership of jointly owned assets automatically transfers to the surviving person or people on your death.
• If assets are owned as “tenants in common” each person has an “individual, undivided” share in the property. Each person owns a specified percentage of the property (which may not be equal to the share of other owner/s). In a tenancy in common, when an owner dies, that person’s interest does not automatically transfer to the other owner. Their interest is preserved and passed to their deceased estate to be dealt with according to the terms of their will. A tenant in common can leave his or her share in the property to anyone – it can, but doesn’t have to, be left to the other owner.

From 9 February 2008, if you get divorced or your marriage is annulled, your will is revoked unless:

• a contrary intention is expressed in your will
• there is other evidence showing this intention

So, if you do not want your will revoked when you get divorced, you should state this in your will, so it constitutes other evidence (or as other evidence). If you get divorced, and your will is revoked, it is important to make a new will as soon as possible.