Commonly asked questions about legal wills

A will is a legal declaration of how you wish to dispose of your property after you die. It names the people you want to receive the property and possessions you own when you die. These people are known as your beneficiaries.

Your property and possessions include everything you own: your home, land, car, money in bank accounts, insurance policies, shares, jewellery, pictures, furniture, and so on. There are some things that cannot be given away in your will, such as property you hold in joint names, and assets held in companies, trusts and superannuation funds. Subject to this, however, most of your property and possessions can be dealt with by a will.

Making a will is the only way you can ensure that what you own will be distributed in the way you want after you die.

For a will to be valid, it must be capable of being accepted by a court and put into effect by a grant of probate.

To be valid your will must be:

  • In writing – handwritten, typed or printed
  • Signed – ideally your signature should be at the end of the will
  • Witnessed – two witnesses must be present when you sign your will, and they, too, must sign it in your presence

If your will is not made in this manner it may not be enforceable, and your property could be disposed of as if you had not made a will.

Yes, you can. However, it is not in your best interests. There have been very many cases where home-made wills caused problems, such as where they were either unclear or not properly drafted. Home-made wills have even caused taxation problems, both for the estate of the deceased, and for the beneficiaries. Many of these cases end up in court and carry on for years, causing distress and hardship to the family of the deceased. As a will is one of the most important legal documents you will ever make, it is false economy to try to do it without skilled professional advice.

An executor is the person appointed in your will to handle your affairs after you die. If you wish, you can name more than one person to act as executor. You can choose anyone to be your executor, such as your spouse or another relative, a friend or your solicitor – but you should first ask them if they are prepared to take on the task and confirm with them that they have been appointed.

Being an executor is a very responsible position. The executor may have to obtain probate of the will and pay any taxes, debts or expenses before finally distributing the balance to the beneficiaries named in your will.

Yes, you can. You are free to alter your will at any time. If your circumstances change, you can and should alter your will. However, you cannot simply make an alteration by, for instance, crossing something out on the original will and writing in your new wishes.

If the alterations are minor, you can make a codicil (a separate document in which you change a provision in your will) but it is usually better to make an entirely new will unless the change is very simple. A codicil must be signed in the presence of two witnesses, in the same way as when you make your will.

Generally, if you made a will before you married, that will is automatically revoked when you marry, unless it stated that it was made in contemplation of marriage. So if you marry, you will probably need to make a new will.

If you divorce after making a will, then generally any gift or appointment (eg as an executor) in favour of your former spouse is automatically revoked. It is best that you make a new will or codicil if you are divorced or have been separated for a long time.

No, however it is important that you make proper provision in your will for your spouse and children. If you do not, they could commence proceedings under the Succession Act 2006 (NSW) to obtain on order from the court that they receive part of your estate.

This refers to a deceased person who has not written a will, or who has written a will that does not effectively dispose of all of his/her estate.

In this situation, your estate will pass according to the rules set out in Chapter 4 of the Succession Act. These set out who is entitled to the property of a deceased person who has not left a valid will. The formula is complex and may not distribute your assets in the way you would have wanted.

If there is no will, then an administrator must be appointed by the Supreme Court of NSW to deal with the estate. They will distribute the estate in accordance with the rules contained in the Succession Act. These rules changed substantially in 2010 and can be very complex. The key rules are detailed below:

  • Spouse and no children – the spouse or spouses will inherit everything. (Note – spouse now includes “domestic partner”, meaning they have been in a de facto relationship with the deceased for at least two years, or had a child together. De facto includes same sex couples.) Where there are multiple spouses they will share the estate equally, or according to a written agreement between them, or according to a Supreme Court order.
  • Spouse and children of the same relationship – the spouse inherits everything
  • Spouse and children from another relationship – the estate is shared between the spouse and the children from the deceased’s prior relationship, according to this formula:
    • The spouse receives a legacy of $350,000 (adjusted according to changes to the consumer price index), the intestate’s personal effects, and half of the remainder of the estate
    • Children of the deceased’s prior relationship receive the other half of the remainder of the estate
  • Spouse’s right to acquire property – a surviving spouse has the right to acquire property from the estate at its market value at the time of the deceased’s death (ie they are no longer automatically entitled to the house, as previously.)
  • Children only – where the deceased leaves no spouse but only children, they will share in the estate depending on their family relationship. Children of the deceased will share in the estate equally. In the event that a child of the deceased has died already, leaving a child of their own (a grandchild of the deceased), the grandchild or grandchildren will share the portion of the estate that their parent would have received. This continues down the generations and may include great grandchildren.
  • Other relatives – in the absence of a spouse or children, the estate will be distributed to the following parties, listed in priority order: parents, siblings, grandparents, aunts and uncles, and first cousins.
  • Indigenous persons – Indigenous laws and customs are now taken into account in the distribution of the estate of intestate Aboriginal or Torres Strait Islanders.
  • In the event that there are no beneficiaries who qualify to inherit, the estate will pass to the Crown (ie the State of NSW.)

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