Creating a will Top 10 questions

Preparing a valid Will is vital if you want to be sure your financial assets and valuables are passed onto your loved ones as you would have wished.

To help you and your clients we’ve put together our most frequently asked Wills questions.

1. How do I make a Will?

Many people assume that writing a Will is easy and often use a Will kit they purchased from a post office or obtained free when they purchased something else, such as life insurance. Although Will kits can be used to prepare a Will, many people will get it wrong. Mistakes are easily made and can be very costly to rectify in court after death. What’s more, people who write their own Will using a Will Kit do not receive legal advice that is relevant to their circumstances.

It‘s important to seek legal advice when you want a Will drawn up to ensure your assets go to the people you want and in the most tax affective way. Our estate planning lawyers can prepare a Will for you that is valid, legal, binding and tailored for you and your beneficiaries’ circumstances.

Some things you should consider:

What assets do you have to give away?
Who you would like to give to (your spouse, children, family members and/or a charity)?
How much you would like to give to each beneficiary?
Who you would appoint as the executor and/or trustee of your estate? This is a crucial appointment as things can go wrong very quickly if you haven’t got a capable Executor or Trustee appointed to carry out your wishes.
Who you would like to make decisions for you if you’re no longer able to?
Who you would like to look after any minor or dependent children?

We have a national team of specialist estate planning lawyers who can help you prepare a Will that is tailored to your needs and legally binding.

2. How do I make sure my Will is valid, legal and binding?

The best way to ensure that your Will is valid, legal, binding and tailored to your circumstances is to see a specialist estate planning lawyer to have your Will prepared. A specialist estate planning lawyer will ensure that your Will is drafted in accordance with relevant legislation and check that is also executed correctly.

3. What assets can I leave in my Will?

You can only give away or leave assets that you legally own. The assets that you can include in your Will are called estate assets and include:

financial assets (such as cash, bank accounts and shares /investments)
personal effects & household furniture (such as watches, jewellery, trinkets, artwork, antiques)
property (if held solely or as tenants in common)
motor vehicles
digital assets

There are other assets however that are often dealt with separately, known as non-estate assets.

These can include:

Superannuation
Life insurance
Jointly owned property
Assets in a family trust

Our specialist estate planning lawyers can prepare a Will and estate plan for you, as well as give you advice on how to deal with those assets that fall outside of your estate.

4. When should I update my Will?

At AET we encourage everyone to review their Will every three years. You should also review your Will whenever there are changes to your family circumstances (such as marriage, new relationship, birth of a child or grandchild, divorce, death) or alternatively if there has been a change to your financial affairs (for example when you are buying or selling a house or property). Whilst we recommend that you review your Will at least every three years, this does not necessarily mean that your Will needs to be updated.

5. How do I update my Will?

If you would like to change or update your will, our specialist estate planning lawyers can help, whether it was originally prepared by us or not. Simply contact us to arrange an appointment.

6. What happens if I die without a Will?

If you die without having a valid Will you are said to have died ‘intestate’. In these cases, a person – usually your next of kin – needs to apply to the Court to be appointed as the administrator of your estate. Once appointed, your administrator has to administer your estate in accordance with a strict legislative formula (different in each state and territory) as to how your assets and personal effects are distributed. While the legislation is intended to result in a fair and orderly distribution of property, the formula may not (and in many cases does not) reflect what you would like to happen to your assets.

To find out more read our client guides.

7. How do I find a lawyer to draft my Will?

If you’re looking for a lawyer to prepare a Will, you’ve come to the right place. We have a national team of specialist estate planning lawyers who can prepare a Will, and other estate planning documents for you such as an enduring power of attorney, a medical power of attorney/advance care directive/enduring power of guardianship.

8. Who can challenge my Will?

While you are generally free to dispose of your assets as you wish in your Will, it is possible that a person may challenge or contest your Will.

Generally there are two ways to challenge a Will.

Firstly, a person may seek to challenge the validity of the Will itself.
Secondly, a person who has not received what they expected from your estate may seek to challenge your Will by making a claim to the court for greater provision (‘family provision’).

So how do you protect your Will from being contested?

Our estate planning lawyers can help ensure your Will is valid and legally binding in the first place. They will also give you advice on who could potentially contest your Will or have a claim on your estate and ensure this is addressed as part of your Will and estate plan.

9. How do I appoint an executor of my Will?

Your executor should be nominated in your Will. The choice of executor can be:

one or more individuals (either family or friends), or
a professional trustee company, such as AET.

The role of an executor is a very important role and is often an onerous one. Great care needs to be taken when choosing your executor(s). Contact us to find out more about our Executor or Trustee services.

You can also read more in our ‘Choosing your executor’ client guide.

10. How do I remove an executor from my Will?

There are several ways to remove an executor from a Will:

You can remove an executor or appoint a new executor of your own Will by preparing a new Will. Our specialist estate planning lawyers can help you to do this.

Once you have passed away and a Grant of Probate has been issued, your executor can only be removed with the approval of the Court.
The Court also has an inherent power to order the removal of an executor who is 'unfit to act in such office'.