Why You Need a Will

Everyone should have a will. A will is a legal document with details of how you want the things you own to be distributed when you die. Wills aren’t just for older people with money and complex family situations. When you turn 18 and you start accumulating things and relationships, it's already a good time to arrange one. By making a will you remove the doubts and difficulties that can arise when there is no evidence of what you want to happen.

Benefits of making a will include:

• allows you to appoint a person you trust to carry out your instructions (your executor)

• helps provide for the people you care about

• allows you to provide for your pets

• lets you specify who is to get particular things you own

• lets you leave instructions for your funeral arrangements

• allows you to make a gift to charity

Wills are often not really about the money. It's more about making sure that the most appropriate person gets to keep sentimental items like art, collectables, letters, photos and the like.

When you die, your money and stuff is known as ‘your estate’.

Why do I need a will?

If you die without a valid will, you won’t have any say about how your estate is distributed. This is known as ‘dying intestate’. The law sets out rules for allocating your stuff which could be very different from what you want to happen.

The rules vary from State to State, but some or all of your estate could end up in the hands of the Government.

Dying ‘intestate’ can also cause complications, delays and extra costs for those you leave behind.

The assets of someone who dies intestate in NSW are distributed this way:

• your Spouse and any children; (if none then)

• your parents; (if none then)

• your siblings; (if none then)

• your Grandparents; (if none then)

• your aunts and uncles; (if none then)

• your first cousins

If there are none of these then the Government gets it all.

A second cousin, close friend or a charity who believes that you might have been left them something can apply to the State for a share in your estate.

Who can make a will?

Anyone over 18 can make a will as long as they have the mental capacity to be aware of what they are doing.

How do I make a will?

Making a will can be a simple process and it doesn't have to cost a lot of money.

It's a matter of expressing your wishes clearly and planning for what you want to happen if the person you wish to leave something to dies before you do. It's essential to be very clear and follow the rules carefully to avoid arguments over who gets what.

You can buy a kit at the Post Office or legal stationers but it is safer to have a solicitor or trustee company do your will for you. If you have dependent children, for example, you should get a professional to advise on tax issues (such as the benefits of a testamentary trust).

Your will must be in writing and signed by you in the presence of two or more witnesses present at the same time. Your witnesses also sign the will in your presence. A beneficiary under a will should not also be a witness or they may lose their entitlement under the will.

Who can be an executor?

You can choose anyone over 18 to be an executor; most people nominate a trusted friend or family member (usually one of the beneficiaries). There is a lot of paperwork involved so it may help to appoint a lawyer or trustee company. If you don’t name one, the court will appoint an administrator after you die.

Wills made overseas

A will made in another country which is valid in that country will be accepted in NSW. If it is not written in English you will need a certified translation into English when the time comes.

Changing your will

You can change your mind at any time, but you can’t cross out clauses or write in new ones. The way to update your will is to add a codicil or draft a new one. A codicil is a document prepared like a will which sets out the changes you want.

How long will my will last?

Your will lasts until you die, unless you change it, make a new one or revoke (cancel) it. Getting married after making your will revokes the old one. Divorce revokes the parts of your will that refer to your ex-partner.

Don't rely on the partial revocation of your will that occurs when you divorce. Write a new one.

You should also get legal advice about how to update your will if your circumstances change. For example, you marry, divorce have children or grandchildren or your partner dies.

Where to keep your will

Your will should be easy to find after you die. If it can’t be found, the court can presume that you destroyed it and deem you to have died intestate. Keep the original will in a safe place (with your bank, lawyer or trustee company), but not so safe that nobody can find it!

Keep a copy at home among your personal papers with a note saying where to find the original.

You should also tell your executor where you have put the original. Keep your personal paperwork tidy so that your executor can find everything quickly when the time comes.

What did you think of this article? Help make Life Sherpa® even better by giving us your opinion below.