MAKING A WILL
MAKING A WILL
1. What is a Will?
A Will is a document that contains your instructions on how you want your
property to be distributed after you have died.
2. Some important words explained
- The person who makes the Will is called the Testator.
- The Will appoints an Executor. Your Executor is the person who represents
you after your death and does everything necessary to carry out the instructions
you have set out in your Will. In carrying out your instructions the Executor is
referred to as administering your Estate.
- The person or persons who the Will says are to receive your assets are
referred to as Beneficiaries.
- In some (but not all) cases, the Executor needs to obtain Probate of the
Will. This is usually the case where you had assets of substantial value when
you die. After obtaining Probate your Executor will be recognised at law as the
person who has the right to deal with your assets after your death. Your
Executor gets probate by making an Application to the Supreme Court. The Court's
approval is sought to recognise that the Will is valid and that it is the last
one that you made. That approval is known as Probate. Probate is often confused
with Probate Duty. Probate Duty was a tax. It was abolished (both at Federal and
State level) in the early 1980s. (You can find out more about Probate by
selecting "Handling Probate" on the AussieLegal menu).
- When a Will is signed by the Willmaker (and the appropriate witnesses) it
is known as having been executed.
- One of the formal requirements for a valid Will is that two (2) people
should see the Willmaker sign his/her signature to that document. Those people
are called the witnesses. They also sign the Will so that (if need be) they can
be called to confirm that it was the willmaker (and not someone else) who signed
the Will and the circumstances in which the Will was signed.
- When you cancel a Will you are known as having revoked it. All Wills
contain a sentence cancelling previous Wills (ie. "I revoke all former
- A person who dies without making a Will is said to have died intestate.
3. How old do I need to be to make a Will?
You need to be eighteen (18) years of age or older (there are some limited
cases where a person younger than 18 can make a Will, but in such cases you need
expert legal advice.)
4. Why make a Will?
- Without a Will, on your death your assets may not where you wanted them to
- If a person dies intestate, rules contained in legislation decide how your
assets are distributed taking into account your family situation. In Victoria
the division of your assets is made according to rules outlined in the
Administration & Probate Act 1958. Some examples of the rules are as follows:-
- If you die survived by a spouse* without leaving children, then the whole
of your estate will pass to that spouse.
- If you die survived by a spouse* and children, your estate is divided in
set shares between that spouse and your children. Your spouse will receive the
first $100,000.00, the personal chattels and one third of the balance of your
Estate. The children will share the remaining two thirds of the Estate between
- If you die and you are not survived by a spouse* or children but you are
survived by our parents, your parents will inherit your assets.
- If you die and you are not survived by a spouse*, children or parents but
you are survived by brothers and sisters, then your Estate will be divided
equally among the brothers and sisters who have survived you.
*Warning: These rules refer only to legally married spouses and do not
include a defacto spouse.
The disadvantages of dying without a Will include:-
- Your property may not be divided according to your wishes.
- Your children and other minors in your care may not receive the financial
and other assistance you would have desired or will take their lump sum payment
at eighteen (18) years of age, whereas you may have wished to nominate a later
- Your de facto spouse, stepchildren, friends and favourite charities may
- Your Estate maybe administered by someone you disapprove of.
Not everyone wishes to distribute their assets in accordance with the rules
set out in the legislation. The making of a Will ensures that your assets pass
to the people of your choice. The rules in the legislation do not take into
account that you may have a special person or other friends or even charities
whom you wish to benefit.
Write Your Own Legal Will $29.95
An alternative to having a solicitor prepare you will is for you to write
your own legal will. Our legal kit includes easy to follow steps and 3 complete
examples to follow. Click on the link below for more information.
Will Check, Registration and
After you have completed and signed your will, it is recommended that the
original document be checked, registered and stored in a safe place. Once your will is
registered with the Australian Public Will Register, your relatives and or
your executor can search for and retrieve the document from safe-keeping after
your death. Registering your will and securely storing the original document can
ensure that your estate is handled quickly and efficiently. Click on the link
above for more information.
Write Your Own Legal Will Plus (includes Will Check, Registration & Storage)
Save money with the 'Plus' package which includes the Write Your Own Legal
Will kit AND the check, registration and storage service. Click on the link
above for more information.
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