Wills - common questions

1. What is a Will?

A Will is a legal document that clearly sets out how you want your assets to be distributed when you die.

2. Who should write a Will?

It’s recommended that everyone over 18 years has a Will.

3. Once I make a Will – is it set in stone?

No. In fact, it is important you review and update your Will every five years or so and especially when you’re making big changes in your life – like getting married or divorced, or if you’re living in a de facto or same sex relationship. Travel, having children, buying a house, owning a business and retiring are amongst many reasons you should make or review your Will.

4. What is an executor?

An executor is the person responsible for the administration of the Will and their role is to manage the estate within the terms of the Will and protect the assets of the estate. It is important to have an executor who understands the financial, taxation and legal implications. If there’s the added complication of a dispute, it’s particularly important to have an independent executor.

5. What is a beneficiary?

A beneficiary is a person named in the Will as a recipient of part or all of the estate.

6. Can a witness to my Will also be a beneficiary?

No.  They are immediately excluded from your Will.

7. What happens to my estate if I die without a Will?

If you die without a Will, you die intestate. This means, as you didn’t have a Will, no-one knows who you wanted as your beneficiaries and who you wanted as your executor. Your assets will then be divided up according to a pre-determined government formula with certain family members receiving a defined percentage of your estate despite what you may have wished. If you die intestate and have no surviving relatives as defined by the government formula, then the State government will receive your estate.

8. What happens if I die without a Will and I am in a de facto relationship?

The Law considers your de facto partner, whether opposite or same sex, your legal spouse and he or she may be entitled to share in your estate.

9. Will my spouse automatically receive my assets if I have no Will?

If you leave children by a former partner, your current partner or spouse may end up sharing your assets.

10. If I get married after making a Will, is that will still valid?

No.  Marriage revokes a Will. However, it will not revoke a gift to a person to whom you were still married when you died. Also if they are an executor in your Will, that appointment is not revoked.

11. Can I write my own Will?

Yes, but before you scribble down your wishes for your nearest and dearest on the back of an envelope, there are certain legal requirements to make it valid. A Will is a legal document, so it is advisable to see a professional to make sure your intentions are properly drafted and that the document is legally valid, ensuring your wishes will be carried out as you wanted.

12. Can I change my Will once I have made it?

Yes.  You should review your Will every five years or when your circumstances change (eg marriage, divorce, change of assets, children, etc).

13.  If I was born in another country and have a Will there, should I have another Will made in Australia?

It is advisable to have a Will made in your country of permanent residence to include all your assets to ensure your wishes are fulfilled after your death.

14. What does it cost to make a Will?

There is no charge to write your Will with NSW Trustee & Guardian as executor, and you can change it as many times as you like, particularly as your life circumstances change. Charges apply on estate administration only.

15. Who are the professionals that can help me write my Will?

NSW Trustee & Guardian, a trustee company or your family solicitor can help you write your Will.

16. What are the most common mistakes?
  • Not keeping your Will up to date. Births, deaths, marriages, separations and
    divorce all impact on your Will. 
  • Not providing adequately for dependants may result in your Will being contested.
  • Not taking tax implications into account. Tax implications may alter the value of your assets when they are sold off.
  • Writing a ‘home-made’ Will may result in your Will being declared invalid if it was not signed or witnessed properly, or has ambiguous wording.
  • overlooking superannuation. How you want this dealt with is important.
  • Not nominating guardian/s if you have children. If anything should happen to you and your children are under the age of 18, it may be left to the courts to decide who will look after them.