What do I need to know about making a will?

An overwhelming 48% of Australian’s do not have a will according to a recent survey yet a will is one of the most important legal documents you'll create during your life. Here’s what you need to know today.

Why do you need a will? Essentially a valid will can save your family and loved ones a lot of time and money at a difficult time.

If there are issues in administering a will, there may be significant repercussions and increased costs associated with the delay. For example, in matters of intestacy, the courts must establish a possible list of the testator's kin, a laborious process that could take years.

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Any adult over the age of 18 can make a will, however, several other important requirements must be satisfied

So, what is a will exactly?
It is a legal document that disposes of the testator's (the person making the will) property in the event of his or her death. A person must make the will with testamentary capacity - in other words, the will maker must be of sound mind and reasonable health.

The will should also be executed properly and duly witnessed by independent persons. The document must exclusively deal with property owned by the testator and must not have been revoked by the creation of another will.

If a will is effectively declared, then it may proceed to probate (the will is proved) under the provisions of the Probate and Administration Act. After the death of the testator, the Supreme Court must grant the executor the power to discharge the will. With this authority, the executor may pay debts, deal with title on real property and administer the estate according to provisions in the will.

If a will is found to be invalid, then the rules of intestacy apply. In these cases, the Supreme Court may appoint an administrator and grant letters of administration to see that the estate is adequately administered.

Important points to remember
Because a will is a legally binding document, testators will often need to be certain about the choices outlined in the will. Always seek professional advice.

Family members who claim to be ignored or under-represented in a will can make a Family Provision claim to apply for a more amenable execution of the will. This is a costly and time-consuming process, so be sure to create a fair document and carefully evaluate who will benefit from the execution of the will.

The divvying up of assets upon one’s passing can easily lead to unnecessary rifts and arguments within a family. So be sure to create an airtight and equitable will that doesn’t leave room for ambiguity or altercation.

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Making a will means that all you care about, including causes that matter to you most, are looked after

Although it may be tempting to use a DIY will-making kit to save yourself a few dollars, seeking the professional knowledge and experience of a solicitor could well save your estate valuable time and money in the future.

A professionally crafted will be much easier to deal with for those included in the will. The document will be held within your solicitor’s offices and promptly moved to probate upon your passing, solving a very common problem affecting many families – finding the will.

Here are 8 top tips for making a will:

1. Have a legal professional draft your will as their knowledge and expertise will indemnify your estate against intestacy.

2. Consider your choices of executor or executrix. Also, consider the list of potential beneficiaries under your will. Be honest and frank about your choices.

3. Put together a clear and thorough list of all your assets and possessions include bank accounts, shares, business interests and other valuable items (including, but not limited to, art pieces, coin collections and other ephemera).

4. If you have specific items you want left to specific people, begin communicating these decisions to your legal representatives and family members.

5. Make sure that older versions of your will are not floating around the family home or being stored by previous legal representatives- many people will draft several wills over the course of their life, a frustrating factor that may come into play once probate is necessary.

6. Constantly update your will and contact your lawyer as your estate changes- if a will is out of date or refers to possessions which no longer exist, the court may find that the will is invalid.

7. Think about any additional powers that may be required in the execution of your estate- for those with business and other financial interests, granting special powers to your executor may result in a more equitable and smooth probate process.

8. Be truthful and open about the list of potential beneficiaries under your will- if a Family Provision claim is made later, it might disrupt the validity of other provisions contained within your will.

Don’t forget to contact your solicitor in order to get a better understanding of the process involved in drafting a will and always seek professional advice. For more information visit the Australian Government website.

What are your thoughts on putting a will in place? Join the conversation.