Will Guide: Who should I choose as Executor of my Will?
Selecting an executor (or executors) for your will is a crucial choice that could have serious repercussions for your loved ones. The following advice will assist you in selecting the ideal executor for your will:
Select a person you can trust: After your passing, your executor will be in charge of managing your estate and carrying out the directives in your will. Therefore, it's crucial to select a trustworthy person to take care of these duties. This may be a member of the family, a close friend, or a qualified individual like a financial planner or attorney.
Think about their knowledge: Selecting an executor with knowledge in finances, law, or estate planning might be beneficial because it will make the process of managing your estate easier and more effective.
If your executor lives in a distant city or country from you, it could be more challenging for them to carry out the duties outlined in your will. The selection of a local executor may be more practical.
Take into account their workload: If your chosen executor is already preoccupied with their own obligations, it could be challenging for them to handle the additional duties of administering your inheritance. Picking a person with the time and energy to complete these jobs is something to think about.
Choosing an executor who is younger than you is a good option since they are more likely to survive you and be able to carry out your wishes as outlined in your will. However, if you do select an older executor, it's crucial to take their health and capacity for the job into account.
Consult with your executor about your choice: You should consult with the potential executor about their willingness and capacity to serve in that capacity. In case your initial candidate is unable or unwilling to serve as executor, you should also think about naming a backup.
You can select an executor who is qualified to manage the crucial chores of managing your estate and carrying out your desires after your passing by using the advice in this article.
Writing or updating your Will shouldn't be an afterthought, even if it's not on the top of your to-do list. In fact, there are several situations in which you should write or update a Will as soon as possible.
As noted by the Queensland Law Practice in their Medium article, not maintaining your Will when you circumstances have changes in one of the mistakes of Will and Estate Planning. Here are some situations for you to consider.
When you get married
When you get married, it’s important to make sure your Will reflects your new family. If you want to leave all or part of your estate to your spouse, this is the time to do that. Your spouse may also be named as an executor of the Will (which means he or she will be responsible for carrying out the instructions in it).
If you don't want anything left to a former spouse and/or children from previous marriages, or if they have already been disinherited in a prior version of your Will, consider amending those arrangements now.
Alternatively, you might decide that what was once an uncomplicated list of beneficiaries needs updating because there has been a change in circumstances such as remarriage or divorce since last drafting it. In this instance, it might not just be one person who should get more than their original allocation — it could affect everyone listed!
After a divorce or separation
If you are going through a divorce or separation, it is recommended that you update your Will. This is because the process of separating can create uncertainty around how your assets will be distributed and this can lead to confusion in the event of death.
If you have minor children, it is important to know that they will always receive their inheritance regardless of who they live with after your death. This means that if there is any property or money left when you die, it will go straight into their inheritance fund even if they are living with one parent rather than both parents at the time of death.
This means that if someone has been granted full custody by the courts then their partner may not have access to an estate or any money coming from it unless there was an agreement between both parties before hand stating otherwise (which isn’t always possible).
When you have children
If you have children, your Will should be updated. If you don't have children, it should still be updated. This is because when a person passes away and has no spouse or partner to care for their children, the court will appoint someone (usually a family member) as guardian of the child's estate.
Should I appoint a guardian? As an executor of my own parent’s estate when he passed away unexpectedly at age 40, I found this process very confusing given that my relationship with my brother was strained at best and we rarely spoke. However in hindsight I realized how important it was for him to be appointed executor so that he could represent our father’s wishes in distributing his assets to family members after death rather than having them sold off by professionals who do not know us personally or understand our personal relationships with each other
When you move interstate or overseas
If you move interstate, or overseas, it's time to update your Will.
Moving interstate means that you're moving from one state of Australia to another state of Australia; if you're moving overseas it means that you're leaving the country altogether (for example, moving to New York or London).
If either of these situations applies to you, then it's vital that your Will is updated with new information so that your assets are distributed according to your wishes after your death.
If you retire or sell a business
As you get older and begin to think about retirement, you should also begin to consider updating your will. Your estate will be divided according to state law if you don't have a will in place before your death. It's important to have a written document that spells out how you want your assets distributed because it allows people who are closest to you—those who may not be heirs by law—to know where the money is coming from and how they can access it.
For example, if one of your children has special needs or requires expensive medical treatment, naming someone other who is able to act as guardian ensures that they will receive the necessary funding needed for them in order live comfortably during this time period.
If you start a new business
It’s important to make sure your estate is protected. If you don’t have a Will, your assets could be left to the state. If you do have a Will but it isn’t up to date, there may be things that should have been included in it but aren't. This can cause problems when it comes time for your estate to be handled.
Are any of these scenarios relevant to your situation? It might be time to update your Will.
Don't worry—you're not alone! If you've ever considered updating your Will, but haven't got around to it yet, here are some scenarios that might make you think twice.
Your family has grown and changed. Perhaps you have new children or stepchildren, grandchildren and adopted children who weren't mentioned when you first wrote your Will. Or perhaps someone in your family has passed away since the original will was written. In both cases, these changes need to be reflected in the new document.
You have a new partner or spouse. It's important for any person who is named as an executor (the person responsible for administering a deceased person's estate) on their late partner's estate planning documents - such as Powers of Attorney or Wills - to update those documents if they marry someone else after their death so as not to create any conflict with regard to legal authority over assets belonging solely in one spouse’s name (e.g., bank accounts).
You want more control over how inheritances are dispersed among beneficiaries; now may be an ideal time for an update because many people tend not revisit their Wills until they reach retirement age anyway!
Conclusion
There are plenty of other reasons you might need to update your Will. Maybe you want to change your beneficiaries, or the way your assets will be distributed? Maybe you’re managing a new business or retiring from an old one. Whatever it is, it’s important to remember that these changes don’t have to be scary—in fact, they should be exciting! Your life is constantly evolving in new and interesting ways so why not make sure your Will reflects this? The process can be simple with the right support system behind you.
Will Planning and Estate Planning are related, but many people may not know they are two different things. It’s important to understand the difference because a Will is only one component of a proper Estate Plan.
Your Will is your “last will and testament” – your final word about your property and assets and who should receive them after you die. Your Will can only be executed (that is, acted upon and your wished carried out) after you die.
Your Estate Plan, on the other hand, describes how you want your property and assets divided up and distributed both before and after you die. It is usually executed straight away, rather than waiting for you to pass away.
Further, your Estate Plan has a much broader scope than your Will. It doesn’t just cover distribution of your assets – it can cover healthcare instructions for if you become incapacitated (via a “living will” or advanced healthcare directive), or it can delegate responsibility for handling all your affairs to another individual (via enduring power of attorney).
It’s important to understand the difference between a Will and an Estate Plan. While your Will can only come into effect after you die, an Estate Plan can cover situations involving your property, assets, and finances prior to your death. Your Estate Plan is a contingency plan for different scenarios leading up to your death as well as afterward.
How is a Will and an Estate Plan related?
A Will is commonly confused with an Estate Plan because a Will forms part of your Estate Plan. Also, any adult can tell you what a Will is, whereas Estate Plans are not as commonly known and understood. Therefore people conflate the two.
A Will contains instructions for actions required after you die. Your Will speaks about the people you want to:
Raise your children,
Inherit your assets,
Execute your Will.
An Estate Plan makes the distribution of your assets a bit easier by allowing for additional instructions. Your Estate Plan covers different scenarios in the case you are unable to handle your affairs but haven’t died yet. An Estate Plan can contain:
A Living Will – also known as an Advanced Healthcare Directive. This is similar to a Will, but instead of your death, a Living Will is activated when you become unable to make decisions or take care of yourself for health reasons. Scenarios could include being in a coma or on life support, suffering from neurodegenerative conditions (e.g. Alzheimer’s or dementia), being admitted to geriatric care, etc. A Living Will takes significant pressure off family members by making decisions for yourself before the fact and making your wishes clearly known while you can still communicate them.
A Living Trust. This legal document assigns a trustee to handle your assets for the benefit of your eventual beneficiaries. A Living Trust protects your assets for who you want to receive them and can be executed when you specify, even long before your death, so you can make changes as you see fit. A Living Trust can also pre-empt any problems with Probate and is a good way to protect your beneficiaries in case someone contests your Will.
So, what is the actual difference between a Will and an Estate Plan? While your Will covers the event of your death and can only be activated after you die, an Estate Plan is more detailed, can be activated before you die, and offers better protection for your loved ones and intended beneficiaries. The two are related because a Will is a necessary part of an Estate Plan.
If I have a Will, do I need an Estate Plan?
Once you have a Will, you might think the job is done. You may think “I don’t have that much to give away anyway, so an Estate Plan is probably overkill, right?”. In fact, your Estate is probably worth far more than you realise. Your car, your house, your savings, your investments or any businesses you own or have an interest in, your possessions and your valuables, even your digital music or game library – all of these count as Assets in your Estate, and you leave them all behind when you die. If you are survived by loved ones, especially children, you want to do as much as you can to make sure they are taken care of. Not to mention there are scenarios that can happen before you die in which you are unable to protect and take care of both your assets and your loved ones where they may be exposed to unnecessary risk. Having a Will is essential, but it may not be enough.
An Estate Plan gives you the opportunity to cover several contingencies and protect your assets and your beneficiaries, plus it gives you the chance to see your wishes fulfilled before you die. It gives you peace-of-mind that everyone you care about are well taken care of and adds a protective barrier against greedy hands that you haven’t foreseen.
What happens if I don’t have a Will or an Estate Plan?
While it’s not something any of us want to think about, we simply don’t know when our time will come, and you can’t assume you will have advance warning of your death. If you leave this world with your affairs in disarray, it is your family and loved ones who will be left with the mess.
The sad fact is that most people die without an Estate Plan, and many even without a Will. This opens the door to family disputes, state intervention, and taxes no-one told you about springing up without warning.
If you die without a Will or an Estate Plan, the State has to step in and resolve matters, which usually leaves no-one happy or satisfied with the outcome.
In Australia, if you die without a Will, the courts appoint a legal administrator whose job it is to collect your assets, handle your debt repayments, cover your funeral expenses, and distribute what’s left to your beneficiaries. The issue here is they will distribute your assets according to your country’s probate laws, not according to what you may have wanted, and probate laws are not renowned for being fair! If you leave a spouse and children behind, they will be entitled to a portion of your estate, not all of it. If your children are minors at the time of your death, the court will hold their inheritance until they come of age. This removes any ability to invest their inheritance in trust or protect it from fees. In the unfortunate event that both parents die, the court will appoint a guardian for them as well, and they will do so according to how they see fit, not you. Any verbal agreements you had with friends or family members will go out the window and you’ve lost all say in who gets your assets and who takes care of your family.
What about if you lose your ability to speak, make decisions, or move? Again, it will be up to the State to dictate how your assets are used for your care, not you or your loved ones. You will be put under the care of a state-appointed guardian in an expensive and drawn-out process that might not end for a long time, even if you recover. You and your assets will become someone’s job, and the people who care about you may have no say in the process at all.
So, the question becomes – who do you want handling your assets and affairs if you can’t, and do you want a say in it or not? If you want your wishes to have any bearing and you want your loved ones taken care of properly, a Will or an Estate Plan is not optional.
What is a Living Trust, and how is it different from a Will?
A Living Trust is considered a better option than a Will for one big reason – a Living Trust might make probate unnecessary.
Australian probate laws dictate that most of your assets need to go through the probate process before they can be distributed. Even your Will must be approved before probate is granted. It’s not a standard process as it varies from state to state. The probate process carries court costs, legal fees, and executor fees along with it which can really add up and take big chunks out of your Estate. It can take years after your death for the process to conclude, and to top it all off, it’s controlled by the State and not your family. A court can refuse to grant probate if it’s not satisfied with your Will or if there are disagreements over your assets.
A Living Trust, however, gives privacy to the process, is valid in all states of Australia, keeps the State and the probate process out of your affairs, and can be altered or amended as many times as you need. It puts the power back in the hands of your family for full control of your assets and eventual Estate. With a valid Living Trust in place, your family can avoid the need for probate altogether.
The only possible downside to a Living Will is it can be expensive to get sorted up-front. But on the flipside, a Living Will avoids court and probate interference and the associated expenses after your death. In a way, you are just pre-empting possible costs that need to come out of your Estate and keeping them under control now. Looking at it this way, the expenses of setting up a Living Will are a much wiser investment on behalf of your loved ones.
What are the benefits of having an Estate Plan (instead of just a Will)?
Peace of mind
You can make the decisions now and you know that your wishes won’t be interfered with. You can plan the care of your family and loved ones and rest assured your plan will be carried out as intended. Whether your children are adults or minors, you know they will be covered and get the best you can offer them without the State or selfish third parties interfering in their lives. This is perhaps the biggest benefit of an Estate Plan – you can rest easy knowing that your legacy will remain intact.
No need for probate
If you only have a Will, probate is necessary to prove its validity and to give authority to your executor to carry out your wishes. It’s an expensive and painstaking process that chips away at your Estate and can take years to resolve, adding more stress and financial burden on your grieving loved ones.
Living Trusts can be executed with no need for probate. Your Estate stays whole, and no-one can interfere or put their “two-bobs-worth” into how your assets are distributed.
Protects all your intended beneficiaries
A Living Trust especially benefits your young children because you choose their guardian and you choose who holds onto their inheritance, not the State. You can also instruct how your beneficiaries use their inheritance to ensure it is used responsibly and for their maximum good. Going further, a Living Trust protects your beneficiaries in the event of a divorce, bankruptcy, of other unplanned or unforeseen events that might impact their inheritance.
Estate Planning isn’t always expensive
You might be put off by the costs of developing an Estate Plan compared to those of drafting a Will. Don’t be! Yes, there are costs involved, but it doesn’t have to be expensive. With the right legal guidance, you can develop a watertight Estate Plan that covers every detail required without blowing past your budget.
An Estate Plan is the kindest thing you can do for your family because it’s a kindness that extends beyond the grave. With the right guidance, your Estate Plan can give crystal-clear instructions for how you want to see out your days and how you want your family supported when your life is over. And most of all, an Estate Plan ensures that all your wishes will be carried out exactly the way you intend with no outside interference.
If you’re convinced about the importance of an Estate Plan but aren’t sure where to begin, you’re already on the right website! Get in touch with us as soon as you can and we will get you started on the right track.
So, you’ve finished drafting a will using the 4-step checklist and you’re sure it’s legally binding. Is there more to it than those 4 steps? How do you make sure you have a complete and comprehensive as well as legally binding Will?
The Storage of your Last Will and Testament
Is this really your Last Will and Testament?
Did you know - drafting a Last Will and Testament carries an obligation to destroy all copies and versions of any previous Wills?
If you drafted your Will several years ago, it really pays to give it another look-over. No-one wants to think about their own death, and drafting a Will tends to take your mind there. Do you still remember what’s in it?
Life goes in different directions, relationships change, people come and go. Did you leave your whole Estate to your favourite cat shelter before you met your current spouse? If so, you’ll need to update your Will. Did you forget that you left a large chunk of your legacy to an old friend you no longer speak to? Because they haven’t forgotten, and when your time comes, they will come knocking on your executor’s door.
How do you hold the papers together?
Here’s a quirky little fact that no-one thinks about.
Most Wills are typed up on paper and stapled together. Let’s imagine you accidentally staple over a whole bunch of writing in your Will. You never notice it, then after you pass away, the Court is trying to determine your wishes by deciphering from stapled-over paper.
Once a Will is executed and stapled together, that’s it. No-one is permitted to touch it or make any alterations to it – not even the Court itself – and this includes removing or replacing staples. So, you would do well to pay extra attention to your margins and your staple placement. You don’t want your entire legacy undone over a piece of steel worth a thousandth of a cent.
Only keep one Will!
You need to draft a Will. It needs to be legally binding. And there can only be ONE of them.
It might seem safe to have multiple copies of your Will stashed around the place. The fact is, however, they will only cause legal anguish for your loved ones. You won’t be here to explain why there are multiple copies and it can throw the whole thing into doubt.
If you need copies for any reason, they need to be official copies – stamped with “COPY” on each page.
Has your marital status changed recently?
Your marital status can affect your Will drastically, especially if it has changed since you last made your Will. If your marital status changes, your Will needs to change to prevent a world of hurt for those who survive you.
A big issue here is assets owned as joint tenants – your Will has no say over ownership of these. If you own a house with someone, they automatically get ownership of your share, regardless of what your Will says. If your Will does not reflect your marital status at the time of your death, you can leave those you love out in the cold inadvertently.
What about your underage children?
Again – no-one wants to think about this. But if the unthinkable happens and your minor children are left without you, who becomes their guardian? What if you or your spouse pass away at the same time? Or if you are a single parent?
You need to cover off on this if you have underage kids. You need to dictate who will look under them and under what circumstances – for example, should they stay in the same school? Should the money go to their guardian or be kept in trust?
Issues around the care of minors can be a good reason to set up a Living Trust because it protects them and their future better than just a Will.
Your Will, your Superannuation, and your Insurance
Your Superannuation and your Insurance are the only things that don’t get automatically paid into your Estate, so they need special consideration outside of a Will.
Superannuation when you pass away
When you set up your Super (or at any time), you have the option of setting either a Binding Death Benefit nomination or a Non-lapsing Death Benefit nomination. You can choose to nominate individual people, but you can also choose to have your Super balance paid to your Estate.
Some Binding Death Benefit nominations are only valid for three years, so you need to keep them regularly updated. A Non-lapsing Death Benefit nomination (as the name implies) stays in place unless you cancel or change it. But it pays to check the terms and conditions of your specific Super provider to make sure you’ve got things covered.
If you pass away with no Binding Death Benefit or Non-lapsing Death Benefit nominees, your loved ones will have to submit an application to your Super provider for distribution of your balance, and the Super fund will distribute it as they see fit – regardless of what it says in your Will. Therefore, it pays to get some nominations in place to save your loved ones this hassle.
Life insurance when you pass away
With life insurance, the setup is basically the same as with your Super, but it’s far more common for your Estate to be the beneficiary of your cover. In fact, if you haven’t nominated any beneficiaries and the payout is $50,000 or more, the funds will automatically be paid to your Estate – again, regardless of what it says in your Will.
In both cases, you need to leave clear details for your executor about how your Super is set up and whether you have any life insurance policies in place so they can handle them easily.
Is there Inheritance Tax in Australia?
The short answer is “No”. But as with most things, there is a “but…”.
There are circumstances where tax may be payable if the distribution of your Assets results in the earning of income (for example, Capital Gains Tax may be payable if you instruct your beneficiaries to sell your house instead of gifting it to them ). Also, if any of your beneficiaries live overseas, they may be subject to taxes according to the local laws of where they live.
Your lawyer will be able to properly work through your Estate and manage potential tax pitfalls for your beneficiaries.
Don't Forget your favourite charities
Whether you contributed throughout your life, or you just want to do some good on the way out the door, you can nominate a charity or charities as beneficiaries in your Will. If you have a mind to do this, make it clear. If you change your mind about which charities you want to support, make sure you update your Will as soon as you can.
Instructions for how to celebrate your life
You can leave detailed instructions for your final send-off and help arrange the after-party from beyond the grave. You can include such things as where you want the service, who you want to speak, what music you want played, what photos you want shared, even what flowers you want to adorn your memorial. You can also include your wishes about your disposal (e.g. you want to be cremated and your ashes spread in the ocean), who is entitled to do so, and when.
While you can include instructions to donate your organs, by the time your loved ones are reading your will it might be too late. So make sure you tell them you want to be an organ donor before you pass away.
21st Century Will considerations
The dawn of the 21st Century saw the birth of Web2.0, the bursting of the dot-com bubble, and the emergence of social media, the Cloud, and digitised lives.
A Will vs an Estate Plan: what about before you die?
A Will records your wishes and only comes into effect once you die. Estate Planning covers additional scenarios before death. Below are the salient points – for all the details, read our post on Do I need an Estate Plan.
Enduring Power of Attorney (PoA)
Enduring Power of Attorney is a legal document you draft to nominate another individual to make decisions on your behalf in the event you become unable to do so. This person can make decisions about your finances, business affairs, and other personal matters, with the same legal authority as if they were you.
If you become incapacitated in any way or otherwise incapable of managing your own affairs, an Enduring Power of Attorney will allow someone you trust to legally act in your best interests on your behalf. This is a great way to protect your Estate in the case that you don’t die but are unable to live your life at full capacity.
Enduring Power of Guardianship (EPG)
Enduring Power of Guardianship, also known as an Advanced Health Directive or a Living Will, has the same power as a PoA but specifically regarding health care.
Through an EPG, you can make decisions about your health care in advance such as under which conditions you wish to be treated, which medications to use, whether to keep you on life support or not, and if you wish to become an organ donor.
Drafting a Will that holds water
Drafting a Will is quite a detailed process, but it’s worth the effort to protect your legacy and ease your passing for your loved ones. Don’t leave a financial and legal mess behind – get your Will done right and rest easy knowing your wishes will be heard.
Wills and Estate in Australia - what you need to know
The laws regarding Wills and Estates vary depending on where you are in the world, and what may have been the law in your home country may not apply in Australia. Even if your Will was legal and valid in your country of birth, it may be invalid based on the particular laws regarding Wills and Estates in Australia.
Below are four key areas you need to consider if you’ve never written a Will in Australia, or if you have a Will written while living overseas, to ensure you are covered by a legally binding Will.
The Testator: Legal Age, Mental Capacity and Undue Influence
In Australia, the “Testator” (i.e. the person making the Will) must meet certain conditions for their Will to be legally valid.
Legal Age
The Testator must be at least 18 years of age to create a legally binding Will in Australia.
Mental Capacity
The Testator must be “of sound mind” to make a legally binding Will in Australia. Being of sound mind generally means you are aware of your actions and of what you are doing when creating a Will. More specifically, it means you are aware you are creating a Last Will and Testament, you are aware of what constitutes your possessions (what you legally own and can bequeath), and you are consciously and deliberately deciding who will receive them after you die.
Undue Influence
A Testator experiences undue influence when another person uses their relationship or position to steer their decision-making. For example, an overbearing relative could use emotional manipulation to unduly influence the Testator to leave a large portion of their inheritance to them. Just like any other contract, a Will may be found invalid if there is evidence of undue influence.
Mental Capacity and Undue Influence are the most common grounds for challenging or contesting a Will. Fortunately, the burden of proof lies on the challenger to demonstrate the presence of either condition for their challenge to be considered and the standard of evidence is high. Drafting your Will with the help of an Australian lawyer is the most sure-fire way to protect your Will from challenges.
The Will: Intent, Execution and Witnesses
Your Australian Will should have clear and concise language to satisfy the Court, and it must be properly signed and witnessed.
Intent
It will always be difficult to fully understand someone’s intentions once they’ve died. The best way to avoid any confusion is to use concise language avoiding colloquialisms or casual speech and to specify every detail in clear English. For example, every Will in Australia should begin with the words “This is my last Will and Testament” to make it clear that all previous versions or instructions can be disregarded. You should also cover succession (i.e. if a beneficiary dies before you, who is next in line) and include residual beneficiaries to ensure your whole Estate is accounted for.
Execution
In Australia, a Will is considered “properly executed” when it has been signed by the Testator in the presence of two impartial adult witnesses. When you sign your Will, you state that you are aware of what you are doing and of the content and intent of the Will and are free of pressure, threat, or coercion (undue influence).
Witnesses
Once you’ve signed your Will, two impartial adult witnesses need to sign it as well. By signing the document, they are testifying that the Testator was of sound mind and were not under undue influence when making the Will. Without witness signatures, your Will is not valid in Australia. While not a legal requirement, it is greatly beneficial if your witnesses do not stand to benefit from your Estate.
The Estate - Executor and Residual Beneficiaries
The Executor
You are legally required to nominate at least one executor an individual or individuals who will be responsible for distributing your Estate after you pass away. Your Executor must be a legal adult (18+ years of age) at the time of your passing and can’t have gone through bankruptcy at any stage in the past. Your Executor must also be willing and able to discharge their duties, so it’s important to ask the person first. You can nominate your Estate Planning attorney to be your Executor, but they will bill the Estate for their time doing so.
Residual Beneficiaries
Your Estate must be fully distributed after you pass away, so it’s a legal requirement to nominate at least one Residual Beneficiary in your Will. The Residual Beneficiary receives everything left over in your Estate (the “balance” of your Estate) once all other specific gifts have been distributed. If you want to nominate more than one Residual Beneficiary, it’s important to properly deal with proportions and succession.
Updating the Will - Marital status and other changes
A change in marital status can have significant impact on your Will in Australia. Generally, if you get married or divorced after the initial drafting of your Will it is automatically revoked. It is possible to draft your Will to accommodate or anticipate changes in marital status and your Will to remain valid.
While you hope your marriage lasts forever, other things in life can change easily and unexpectedly. You might have a child, or buy a new house, or even change your nominated Executors. Rather than draft an entirely new Will, you can make minor changes by way of a “codicil”.
A codicil is an addition to a Will in a separate document. It can reinforce, add to, or alter an existing Will. There is no set format for a codicil, but it must make reference to the original Will and the date it was executed. If the name of the Testator or the date is incorrect, it can result in lengthy legal challenges and render the codicil invalid. That’s why, in most circumstances, it is better to re-draft your Will if anything more than minor changes are required.
How to Draft a Will - 4 Fundamental Steps to Drafting a Legally Binding Will
How to Draft a Will
Drafting a Will is one of those things we tend to put off thinking about. No-one wants to spend too much time pondering their own demise or what will happen afterwards.
It’s important though, so let’s make it quick! Below is a 4-step checklist for how to draft a Will that is legally binding and watertight.
Who is making the Will?
First thing’s first – who’s Will is this? When reviewing a Will, the Court needs to be able to clearly identify the Testator; that is, the person who is documenting their wishes and to whose Estate this document refers.
It’s very important to put your full legal name in your Will (no nicknames or shortened names, OK “Bob”?). It’s also important to put any other identifying information in your Will to verify that it is genuinely your Will. Most of the time, your current full home address will do the trick. If you don’t want to include your full address for any reason, it’s acceptable to just name the suburb (but a full address is better).
Examples:
"THIS IS THE LAST WILL AND TESTAMENT of me Jane Rosie Doe of 1 Begley Street, Adelaide in the State of South Australia."
Or:
"THIS IS THE LAST WILL AND TESTAMENT of me Jane Rosie Doe of Adelaide in the State of South Australia."
Who is going to do all the things you want done in the Will?
You need to name an Executorin your Will whose job it will be to do all the things you want done. This person will be responsible for gathering and distributing your Estate’s assets, settling debts, and managing affairs until Probate is granted. You also need to make sure your Executor benefits from your Estate in some way.
There are two main factors to consider when choosing who your Executor will be:
a. Your Executor must be a legal adult at the time of your death. Since you don’t know exactly when you will die, it’s best to choose someone who is an adult already.
b. Your Executor must be willing and able to perform this duty once you’ve died. You can talk to the people you have in mind and make sure they’re OK with it, but to be safe you should nominate alternative executors in case the person you want is unwilling or unable once your time finally comes.
Again, make sure you use the full legal name of your proposed Executor so the Court can clearly identify them.
Examples:
"I appoint my BrotherRichard Koerstz to be the executor and trustee of this my Will."
Or:
"I appoint my BrotherRichard Koerstz to be the executor and trustee of this my Will provided that if my said BrotherRichard Koerstz dies before me or during the administration of my estate or is unable or unwilling to be my executor then I appoint as a general substitute my CousinJasper Dale Koerstz to be the executor and trustees of this my Will in Richard Koerstz’s place as the case may be."
Who is going to get all your stuff?
Naming beneficiaries to receive certain items or assets is central to drafting a Will. But you should also name a Residuary Beneficiary. Residuary beneficiaries receive anything else in your Estate that is not expressly given to someone else.
Giving specific things as gifts is good, but there need to be instructions for what’s left over. For example – you might leave your car to one person, your house to another, and your antique doll collection to a third, then anything that’s left over after those have been given out (the “balance” of your Estate) go to a fourth person (your Residuary Beneficiary).
Best practice is to nominate residual beneficiaries in tiers – for example, spouse, then children, then grandchildren – and to make instructions in case any of them predeceases (dies before) you.
Example:
"I give the whole of my estate of whatever nature and wherever situated to my trustee Upon Trust to pay my just debts, funeral and testamentary expenses and to divide and pay the rest of my estate to my spouse John Fredrick Doe for their sole use and benefit absolutely provided that if my said spouse dies before me then I give the whole of my estate or whatever nature and wherever situated to my trustees Upon Trust to pay my just debts, funeral and testamentary expenses and to divide and pay the rest of my estate for my SonWilliam Andrew Doe as survive me and reach the age of twenty one (21) years.
Notwithstanding Anything written above I direct that if my child dies before me leaving a child or children who do survive me then that child or those children shall take, and if more than one then as tenants in common in equal shares, the share in my estate that his her or their parent would have taken had their parent not die before me."
Make sure your Will is signed correctly!
Your Will needs to be Executed (i.e. signed and witnessed) correctly. In Australia, this means that you need to sign and date your Will in the presence of two witnesses who also need to sign and date your Will.
It should go without saying that your witnesses need to be legal adults. But of equal importance is they should not be your beneficiaries or otherwise stand to benefit from your Estate. If they do, it leaves your Will open to be contested or challenged.
Example:
"Dated this 12th day of August 2019.
(Signature)
Jane Rosie Doe
Signed by Jane Rosie Doe as and for a Last Will and Testament in the presence of both of us being present at the same time and we attested Jane Rosie Doe’s signature in the presence of that person and each other.
