Making a Will

Published 27 May 2015
Louis Andreatta

When Will you do it?

A Will is a document which takes effect only when you die. It sets out who will receive your property when you die.

If you die without a Will, the law determines who will receive your estate and property.

Make sure your assets go where you want them to go by having a valid Will. To be valid, a Will must be:

• In writing

• Signed by you and dated

• Your signature must be witnessed by two other people who also need to sign the Will

• You must appoint an executor when making a Will

Your executor is the person who will handle your affairs when you die. It is his/her/their task to ensure that your estate is distributed according to your Will with the assistance of a solicitor.

Prior to distributing your assets in accordance with your Will, your executor must also pay your debts. You should appoint someone who is likely to survive you. Your executor may also be a beneficiary.

The only valid Will is the last Will you make.

You should change your Will when your circumstances change, for example, if you divorce or remarry or one or more of your beneficiaries die. It is usually better to make a new Will when you wish to change your Will.

Generally, getting married cancels the terms of any Will you have previously made (unless the Will was made in contemplation of your marriage). Generally divorce cancels any gift you make to your former spouse under your Will. There are exceptions which your solicitor can explain to you.

If you marry, divorce or enter into a de facto relationship you should make a new Will.

If you do not provide for your spouse, de facto partner or your children in your Will, they may bring a claim against your estate when you die.

Keep your Will in a safe place

Maclarens Lawyers can store your Will for you and give you a copy for your records. This is done free of charge.

Maclarens Lawyers can help you make your Will

Maclarens Lawyers can:

• Make sure your Will is valid

• Advise you about your rights and obligations regarding spouse and de facto partner, children and other dependents

• Advise you on tax planning, including the best way to minimise any potential capital gains tax from the gifts that you make in your Will

• Advise you about the role of your executor and help you choose an appropriate executor or trustee

• Advise you on what happens to your superannuation when your die

When making a Will you should also seek advice relating to the making of a Power of Attorney and also the appointment of an Enduring Guardian.

Unlike a Will, Powers of Attorney and Enduring Guardians have effect only during your lifetime and in the event that incapacity prevents you from managing your own financial affairs or properly looking after your health wellbeing and lifestyle. Maclarens Lawyers can advise you regarding the making of a Power of Attorney and also the appointment of an Enduring Guardian.