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Making a Will in Australia

People often think of making a Will when a major event happens in their life, such as marriage, death, the birth of a child, or the purchase of property. Some are reluctant to seek legal advice and consider that it would be easier to purchase a will making kit and prepare one at home. Lawyers are often asked “Why should I get you to write my Will? Why can’t I do it myself?”

People often think of making a Will when a major event happens in their life, such as marriage, death, the birth of a child, or the purchase of property.

Why a lawyer should prepare your Will

Too often lawyers see the unintended dire consequences of a poorly drafted home-made Will. When a person dies leaving a Will that does not meet the legal requirements of the State laws applying to making a Will, executors are often put through a rigorous and unnecessary application process with the Probate Office, including giving evidence to the Probate Registrar as to how the Will was signed, where it was signed, and so forth. Ultimately, the Probate office may not be satisfied with the answers to their enquiries and the result is a declaration that the Will is invalid because it doesn’t meet the legal requirements.

Another common problem is where an executor may have obtained a grant of probate but can’t understand what your wishes are under the Will because they haven’t been expressed properly. This can result in immense costs to your Estate after you die, defeating the purpose of buying a cheap home-made Will packet in the first place.

A solicitor can listen to your instructions when making a will and translate it into a document that not only meets the requirements of the law, but gives effect to your wishes in ways that you might not have known about had you simply prepared your own Will. A lawyer can tell you about testamentary trusts, life interests, specific bequests, and other ways of disposing of your assets when you die.

The essentials of Will making: Before the Will is written

Before making a Will, you should write a list of your assets and how you own them (for example, whether you own a house as joint tenants with your spouse/partner, or as tenants in common). Your lawyer can then explain to you how these assets devolve on your death, and whether or not these are assets that can be included in your Will.

You should also set your mind to thinking about who you want as your executor. Your executor is the person who will be required to apply for a Grant of Probate of your Will at the Probate Office or Registry in your State or Territory. The Grant is the document which confirms the validity of the Will and enables the executor to stand in your shoes as the person who will call in your assets and thereafter distribute your estate to your nominated beneficiaries.

Choose someone who you trust to carry out your wishes in a fair and unbiased manner. Consider whether your executor may not get along with some of the beneficiaries, and whether it is appropriate to choose someone who will remain neutral in the event of any conflict. Your executor should live in the State or Territory in which you reside at the date of your death, otherwise there may be practical difficulties having that person administer your estate.

The essentials of Will making: Writing the Will

When making a will, your lawyer can help you understand whether a testamentary trust or life estate may be more appropriate than an outright bequest under your Will. Testamentary trusts are trusts created within the Will, where an asset of yours is set aside and held on trust for the benefit of a nominated beneficiary. Testamentary trusts are an excellent way of putting funds or property aside for a minor child or a disabled beneficiary. If you do have a minor child, you ought to include a clause in your Will regarding who you wish to act as guardian for that child in the event the other parent dies before you.

Once a draft Will accurately represents a testator’s intentions, a lawyer will usually invite the testator into their office to have the Will executed in accordance with the appropriate legislation. Across Australia, the minimum number of witnesses required is two witnesses, who both must be present at the time the Will is executed by you or by someone at your direction. A lawyer can ensure that your witnesses are competent to witness your Will.

The essentials of Will making: After the Will has been made

Some States, such as Victoria, have a Will Bank where Wills can be deposited for safe-keeping after they have been executed. Other States, including Western Australia, do not have Will banks and it is up to individuals to decide where to store their Will. Lawyers recommend that you store a Will somewhere fire-proof, flood-proof and theft-proof, such as a safe or a bank.

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