A will is a written document which sets out what will happen to your property when you die. Property can include:
- financial investments such as cash, superannuation and shares
- personal belongings such as furniture and appliances, and
- sentimental objects such as jewellery, photographs, stamp albums and books.
A will can also deal with other issues which do not involve property, such as organ donation, funeral arrangements and other wishes you may have.
What is required when making a will in Victoria?
The Wills Act 1997 sets out the main requirements for making a will in Victoria. The person who makes a will is known as the testator.
Anyone can make a will as long as they are over the age of 18 and have the required mental capacity. If you are under 18 and married, you can also make a will. Wills must be in writing and must be witnessed by at least two people, who should also sign each page of the will using the same pen as you.
Writing a valid will which matches your intention is not as easy as it sounds and may require very precise language. Wills no longer need to be registered in Victoria, so once you have one made, you should keep a copy yourself (possibly in a safety deposit box with a bank) and keep another copy with the solicitor who drafted it or the executor listed in the will. You can also deposit the will with the Victorian Will Bank.
Changing a will
A will may need to be changed for a number of reasons. Firstly, you may get married (or divorced) or have children. Under the Wills Act (Vic) 1997, these changes may have implications for the validity of your will. For example, a will is automatically cancelled upon marriage, with the exception of any gifts to the person to whom you are married. Upon divorce, the will may revoke any inheritance which may have gone to the former spouse as well as any power to execute the will, unless it is clear you did not wish for this to happen.
Secondly, you may inherit or receive a significant windfall which is not accounted for in your current will. Lastly, you may have a falling out with someone who is currently listed in your will, or who would expect to receive part of your estate under the Wills Act. In this case, it is very important to make sure that your will is up to date, otherwise your assets may be distributed to someone you don’t wish to benefit.
Executors and administrators
When a person dies, the first thing that must happen is for the executor named in the will to bring an application for a grant of probate. Probate is the name of the court document which officially recognises the validity of the will and authorises the executor to begin to administer the estate.
The executor obtains probate by making an application to the Probate Office of the Supreme Court of Victoria. The executor is specifically named in the will and takes control over the property, holding it on trust until he or she distributes it to the person or people that you intend. For this reason, it is very important that you only choose someone that you trust completely for this task.
If a person has died without naming an executor, or the executor cannot act for some reason, the major beneficiary under the will can apply for letters of administration with the will annexed. They will then have the same power to dispose of the property as the executor.
Ways to distribute your property
There are a number of options available to testators when deciding how to distribute their property to beneficiaries under the will. If you have a special item that you wish to distribute to someone, or if you want to give someone a set amount of money, then that distribution is known as a specific gift under the will.
If you have a child under the age of 18 at the time you make the will, then any gift to him or her will not be received until they turn 18. You may wish to include in your will a testamentary trust for your child or for a spouse. This is where property is put into a trust for the benefit of a person, without them receiving the property outright. You may wish to specify that the trustee of that trust (who may be the executor, or someone else) has the power to invest the money held on trust, and distribute it on a regular basis.
Dying without a will
The Act sets out certain rules regarding who is your next of kin and therefore who will obtain your property when you die. In this case, an administrator, who is ordinarily the next of kin, is appointed by the Supreme Court to manage your will in accordance with the relevant provisions of the Act.