What is a will?TOP
A will is a written and signed document, which provides for the distribution of a person’s property and assets on that person’s death. The will sets out who gets part or all of a person’s property when they die. Your assets are called your “estate” in a will.
Remember that a will is for assets in your own name or property you own as tenants in common, but not for jointly owned assets such as jointly owned property, bank accounts and shares. For further information see ‘A note on different forms of asset ownership’ below.
Why make a will?TOP
The most important reason for making a will is to make sure that, after your death, your assets are distributed in the way you want them to be. A will provides certainty that, subject to any challenge to the Will, “the right assets, go to the right people, at the right time”. Your will can also specify who will act on your behalf in carrying out your directions specified in the will (the ‘executor’), and your preferred funeral arrangement. The executor can be anyone over the age of 18 that you trust to do the job, including one of your relatives or one of your children (of adult age). The executor can also be (and often is) a beneficiary of the will.
If you do not leave a will, your property will be distributed in a way laid down by the law. When a person dies without leaving a will, they are said to have died “intestate”. If you die intestate or your will is invalid, an administrator appointed by the court pays your bills and taxes from your assets, then distributes the remainder, based on a predetermined formula, which may not be how you intended your assets to be distributed. The administrator can be anyone with an interest in your estate who makes the application to the court. If you die intestate and don’t have any living relatives, your estate is paid to the State government.
How do you make a will?TOP
A valid will must be in writing and must be signed (executed) and witnessed by two people over the age of 18. It should also be dated at the time of signing. For more information on how to make a will and who can be a witness to it, go to the Citizen’s Advice Bureau Make A Will page or view their Make A Will factsheet. If you would like help in making your will, you can seek private legal advice or contact the Public Trustee (Department of Justice) to book a Will appointment.
What you should think about putting in your willTOP
- Who will look after your children if they are still below the age of 18 when you die;
- How your estate should be distributed. i.e. Who should receive particular items or assets;
- Who should be your executor to administer your estate;
- Gifting of sentimental items;
- If you want any trusts established;
- Any money to be donated to charities; and
- Funeral instructions, which may include organ donation.
A note on different forms of asset ownershipTOP
When two or more people own an asset such as a home they might own it jointly or as tenants in common. In both cases each person owns a share of, or interest in, the whole property and the property is shared. However, there are important differences with respect to what happens when you die:
- Assets that are owned jointly with another person (or people) are not covered by your will, as ownership of jointly owned assets automatically transfer to the surviving person or people on your death;
- If assets are owned as “tenants in common” each person has an “individual, undivided” share in the property. Each person owns a specified percentage of the property (which may not be equal to the share of other owner/s). In a tenancy in common, when an owner dies that person’s interest does not automatically transfer to the other owner/s. Their interest is preserved and passes to their deceased estate to be dealt with according to the terms of their will. A tenant in common can leave his or her share in the property to anyone – it can, but doesn’t have to, be left to the other owner/s.
If you get divorcedTOP
From 9 February 2008, if you get divorced or your marriage is annulled your will is revoked unless:
- a contrary intention is expressed in your will; or
- there is other evidence showing this intention.
So, if you do not want your will revoked when you get divorced you should state this in your will. If you get divorced and your will is revoked it is important to make a new will as soon as possible.
Once your will is writtenTOP
- Keep it updated as your assets and/or circumstances change;
- The best way to make major changes is to make a new will. Otherwise, you may add a codicil to your previous will. A codicil is a document that is used to alter something in an earlier will and must comply with all the legal rules that apply to a will;
- Do not physically alter the original will. Removal of staples, for example, may void the will.
- Keep it in a safe place e.g. The Will Bank or an easy to grab box with all your essential documents. Some accountants and lawyers will keep your will for you;
- Tell someone trustworthy where your will is located e.g. a trusted friend or family member, your children, or the person you have nominated as an executor.
[Article last updated: 4/11/21]