Guide to Making a Will

You’ve worked hard throughout your career and have built up assets and wealth. Whilst it can be an unsavoury topic, consideration should be given to what will happen to your estate upon your death. Undoubtedly, you want to pass your assets to the people or organisations that you consider would benefit from them upon your death. The last thing you want happening is for your intended beneficiaries to miss out on your estate.

A properly drafted Will is the most effective way of ensuring that your assets and possessions are transferred to the people you wish in the manner you desire after your death.

Below is a guide to the basic considerations and queries that may come to mind when thinking about your Will.

What is a Will? 

A Will is a formal written document that sets out:

  • who is to manage your estate (your assets and possessions) upon your passing;
  • how your estate is to be divided;
  • who is to receive each part of your estate and when they are to receive it.

In order to be valid, your Will must be signed by 2 witnesses.

Do I need a Will?

It is not compulsory to maintain a Will.

However, if you do not have a valid Will when you pass (known as dying ‘intestate’), a formula determined by the government will dictate how your estate will be divided. It is unlikely that this formula will reflect your intentions with respect to the distribution of your estate, particularly if your circumstances are in any way unusual.

It is recommended that anyone with any property, possessions or other assets makes a Will.

When should I make a Will?

Anyone over the age of 18 can make a Will at any time. Your Will can be updated or amended whenever it is necessary to do so.

It is important to ensure that your Will is up to date and accurately reflects your estate and your intended distribution. Therefore, Brennan Law Partners recommends making or updating your Will if:

  • you have recently acquired or disposed of any assets;
  • you have a new child or children;
  • one or more of your intended beneficiaries passes away;
  • you wish to add or remove a beneficiary from your Will;
  • you get married, are in a defacto relationship, divorce or re-marry;
  • your family situation changes in a way that would impact your Will;
  • your executor becomes unable to perform the role of executor;
  • you wish to change your executor.
Can’t I just draft my own Will? 

You may be aware of the ‘DIY’ Will kits that are available at a fraction of the cost of having your Will drafted by a lawyer. Indeed, in some circumstances involving a very simple estate, a DIY Will kit will be satisfactory to deal with your estate. However, whilst there is no requirement to have your Will drafted by a lawyer, caution must be exercised when considering whether to draft your own Will.

There are many (and often very strict) rules regarding the structure, wording and formalities Will which, if not complied with, can invalidate your Will or a section of it. This may significantly impact on the way in which your estate is distributed.

Furthermore, having an imperfectly drafted Will creates an increased likelihood of challenges being made to your Will and significant costs being incurred by your estate in defending that challenge.

What is usually included in my Will?

Most assets, property or items that you own can be distributed under your Will, including:

  • your home;
  • your investment properties;
  • your share portfolio;
  • your bank accounts, cash and payout entitlements;
  • your bonds;
  • your jewellery;
  • your cars;
  • some trust interests;
  • your other personal effects.

However, there are some items that you may think form part of your estate, but which are generally not included in your Will, including:

  • superannuation;
  • insurance policies;
  • property which you hold as a joint tenant;
  • your business (although you may pass your interest in the business).
How can Brennan Law Partners assist?
If you do not currently maintain a Will, or your Will requires updating, Brennan Law Partners can assist you with:
  • Making/Updating a Will.
  • Estate Planning.
  • Powers of Attorney.
  • Contesting a Will.
  • Advice for Executors.

If you have any questions regarding any information in this BLP Brief, we welcome you to contact us at any time.

This is meant as a guide only and should not be taken as legal advice.