Making a Will can avoid undue stress for loved ones left behind.
ESTATE PLANNING

When should I make a Will? Estate Planning Guide

mel-mono
  • Mel Buttigieg
  • Writer, Bare
  • October 20, 2020
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Making a Last Will & Testament isn’t as complicated as some people may think. You don’t need to pay a solicitor to prepare one and there is no official document that needs to be filled in. A legal Australian Will just needs to be in writing and signed by the Will-maker plus two witnesses.

We’ve put together this Complete Guide to Wills to help you write your own Will. It explains the general guidelines, in plain English, to make your own legal Will. It also includes some things to consider as you prepare the document if your estate, family affairs and circumstances are straightforward. However, if you need additional advice on specific legal matters concerning your estate or Will, or if you feel your circumstances are too complicated, liaise with an estate planning professional or seek legal advice.

Please note that while this guide will explain what is required to prepare your own legal Will without the need to engage a solicitor, the Will-maker, will need to have some knowledge about structuring financial affairs or asset ownership. Again, if your situation is more complex you should seek professional advice.

This Complete Guide to Wills is broken down into the following sections:

  1. What is a Will?
  2. How to get started writing your Will
  3. Why should I make a Will?
  4. How do I revoke my Will?
  5. When should I update my Will?
  6. When relationships change, what does it mean for a Will?
  7. Dying intestate: What happens if you die without a Will?
  8. Who should I choose as my Executor?
  9. Beneficiaries
  10. Bequests
  11. Residual Estates
  12. How to disinherit relatives (by accident and intentionally)
  13. Guardianship of minor children
  14. What is a Minor’s Trust?
  15. Codicils and amendments to your existing Will
  16. What happens if I run out of space?
  17. Blank clauses
  18. Joint property ownership
  19. Capital Gains Tax
  20. What is Probate?
  21. How to contest a Will?
  22. Witnessing your Will
  23. How to Sign your Will
  24. Common Will-making Mistakes
  25. Summary of important points
  26. How do I store a Will?
  27. Executor Checklist
  28. People to inform of my death
  29. Key contacts and personal details
  30. Making an asset inventory
  31. Debts and liabilities
  32. Superannuation
  33. Funeral Wishes
  34. Example Funeral Instructions form
  35. Organ and body donation
  36. How to obtain a death certificate

1. What is a Will?

A Last Will & Testament is a legal declaration of a person’s final wishes, usually in writing, as to the disposition of their property and assets after death. It’s a document that can guarantee your wishes after you have passed away, regarding your estate (property and assets), money, personal effects, children and even pets.

2. How to get started writing your Will

For more than half of Australia’s adult population, making a Will is something they never got round to doing – even though it could mean their loved ones may not be provided for if it becomes too late! A staggering 52% of us have not prepared the vital legal document, according to comparison site finder.com.au.

A DIY Will can be an affordable way to do the same job without a solicitor, but it can easily go wrong. A high level of care is required to make it a legally binding document.

Just because the document is in the format of a Will doesn’t mean it actually covers everything that a Will needs to cover. If your language is vague or your intentions are not explicitly clear, your instructions may not be followed properly, or the Will could even be ruled invalid. Finally, you’ll need to ensure all of the proper steps are taken, including having it signed by yourself and two witnesses.Bare Cremation disclaims all liability arising from the error or negligence of the Will-maker if steps are not followed lawfully.

Getting started drafting your Will

It’s a good idea to draft your Will on scrap paper first, to ensure you have enough room and know what you want to write in each section. A draft also makes it easier to transfer the correct information to the main document. Once you get started writing your thoughts down, you may be surprised that it can take up more room than first expected.

If you have made a mistake and need to make a change to your Will document, you’ll need to be extremely careful how to remedy it to ensure it is a valid document. If your Will document is not yet signed and witnessed, you must not use white out. Instead, cross it out the error, amend it and initial the amendment.

If you wish to make changes to a Will after it has been signed and witnessed, it’s not as simple as crossing a few things out and adding a note in its place. To amend an existing Will, you will have to make an official alteration called a codicil, that must be signed and witnessed in the same way as a Will is. However, it’s best to start again from scratch, with a new Will document.

Once you have made a Will, ensure the document is legally valid, up to date and safely stored.

3. Why should I make a Will?

A Will is probably the most important document you’ll ever make your life. Getting your affairs in order while you are still enjoying a sound mental health allows you to make these important legal decisions now, before it’s too late.

Making a Will allows you to:

  • Ensure your assets will provide for your children and other dependants after you die;
  • Nominate the Executor, or Executors, of your estate, who will distribute the assets to the beneficiaries in accordance with your written instructions;
  • Safeguard your family from the possible stress of an unknown executor taking ownership of your estate;
  • Make your exact wishes known about who will benefit from your estate after you die.

As mentioned earlier, more than half of Australian adults don’t have a Will. Most will avoid making one because they feel the process may be overwhelming. Making a Will forces us to accept our own mortality, so it is often easier to avoid the task than face the grim reality. But not having a Will is not only inconsiderate, it can also cause undue stress for your loved ones left behind after you pass.

Another reason people may not have a Will is because they may not think they have anything of value to leave behind – but this is often not the case. When making an audit of your possessions, take a look around you. Note any furniture; special ornaments, jewellery and other belongings; and any car and money in your bank accounts that you may have. You might be surprised with how much you actually have.

Aside from items of financial value, you could have priceless family heirlooms or sentimental items that would be treasured by your loved ones after you die.

And lastly, even if you’ve made a Will previously, your circumstances may have changed. It’s important to review your Will when your circumstances change to ensure the people currently in your life receive what is precious to you.

A Will is probably the most important document you’ll ever make your life.
A Will is probably the most important document you’ll ever make your life.

4. How do I revoke my Will?

Revoking your Will means that the current Will is cancelled, or no longer valid. The safest way to do this is to prepare a new Will before destroying the old one, to ensure you have a legal Will at all times and don’t risk dying intestate (dying without a legal Will). If you revoke a Will for any reason, it’s safest to do it the same time you write a new Will.

It’s important to take note of the many circumstances that may revoke a Will. For example, when you get married your previous Will is revoked unless it includes a ‘contemplation of marriage’ clause. This is explained further in section 6.

In all states and territories aside from Northern Territory and Western Australia, divorce will also revoke a Will in whole or in part.

A Will can also be revoked by writing a legal document stating that you wish your Will to be revoked in whole or in part. The document must be signed in the same way that you sign your Will.

You will also revoke your Will if you tear, burn or destroy it with the intention of revoking it.

5. When should I update my Will?

Wills and estate plans shouldn’t be a ‘set and forget’ approach, but reviewed every few years or whenever there is a significant change to your personal or financial circumstances. For example, it’s wise to make a new Will, as soon as possible, if there is a change in your relationship: if you marry, divorce, separate, have children, or enter into or end a de facto relationship.

You should also update your Will if you buy or sell a major asset like a house or car. Any items that you’ve listed as specific bequests will need to be updated if they are no longer in your possession.

If you, or anyone else named in your Will changes their name or contact details, you should update your Will. Ensuring information is current and correct makes it easier for your executor to carry out your wishes.

Although not legally necessary, it’s safer to write a new Will if your witnesses have died since you wrote it, or if your chosen executor is unable to execute your Will for some reason.

Regular reviews ensure a Will remains current and that the beneficiaries and assets remain correct. A review your Will at least every five years is the common approach, to ensure that all details are current and correct.

6. When relationships change, what does it mean for a Will?

Many people underestimate the impacts of big life events. As mentioned earlier, don’t forget to update your Will if you get married, divorced, have children or change your relationship with a particular person named in your Will.

Marriage

Marriage will automatically revoke any Will that existed prior to that marriage. If you are unmarried but in a relationship with a partner while you make a Will, it will become invalid once you marry, even if your partner is named as the sole beneficiary. If you are writing a Will prior to marriage, you can get around this by writing in a ‘contemplation of marriage’ clause.

You will need to include your intended spouse’s name and write in the condition, for example: “This Will is made by me in contemplation of marriage to [intended spouse’s name] but not conditional upon that marriage taking place.”

This clause allows you to write your Will now and it will remain valid before and after you marry. Even if you never end up marrying the intended person, your Will is still valid.

If, however, you want to write a Will prior to marriage, with the intention that it takes effect after the marriage has taken place, it’s essential that you use the correct wording to specify your specific wishes. In this case, it’s best to seek legal advice to avoid any problems.

Divorce

When you divorce, your Will is either revoked or the section relating to your former spouse is considered null and void, according to the law in each state and territory except the Northern Territory and Western Australia. After a divorce, whatever you had specified to be left to your former spouse will now form part of your residual estate – the assets after all gifts are bequeathed and debts, taxes and fees are paid. To ensure that you will not die intestate, and also to provide for any beneficiaries, children or dependants as you wish them to be, it’s important to write a new Will immediately after a divorce has been legally granted.

Separation

Separation alone does not revoke a Will. In Australia, you must have been separated from your spouse for at least 12 months before a family court will finalise your divorce. So, if you died before any divorce was finalised, your estranged former spouse would still be bequeathed everything you had specified in your Will.

To avoid this, it’s a good idea to write a new Will in the interim period between separation and divorce. Them after divorce is granted, you can always write a new Will that reflects your current feelings and wishes. As mentioned above, divorce will revoke the section of your Will relating to your former spouse’s benefit, aside from the Northern Territory or Western Australia.

De Facto relationships (domestic partnerships)

A de facto relationship, or domestic partner relationship, is where two people, who aren’t married, are committed together in a marriage-like relationship. Since 2017, Australian law recognises de facto relationships regardless of gender, so it also includes same-sex couples.

In Victoria, New South Wales, Canberra, Western Australia, Tasmania and Northern Territory, a de facto relationship is legally recognised if it has existed for at least two years. In those states except Western Australia, a de facto relationship is also recognised if the couple has a child together, however a WA court will take into consideration care and support of a child when determining to grant de facto status in that state sooner.

In South Australia, a domestic relationship must have existed for at least three years before it is recognised as a de facto relationship for State law matters, including for Wills and death. However, if the couple has a child together, any length of the relationship will be recognised.

The same laws in those states apply to same-sex couples. Exceptions can also be made if substantial contributions have been made to joint property.

Couples may also register their relationship with the Births, Death and Marriages department in their state for it to be legally recognised.

If you are considered to be in a de facto relationship when your partner dies, but are not legally married, then you generally have the same rights and entitlements as a married person, regarding their estate, providing a Will exists that specifies adequate provision.

Same-sex de facto couples

Since 2017, all Australian de facto relationships now legally have the same requirements as male-and-female de facto relationships, despite the couple’s gender. That means, where no Will exists, same-sex de facto couples are entitled to a share of their partner’s estate in the same way as heterosexual de facto couples are. Same-sex de facto couples also have the right to challenge their spouse’s Will if they are not adequately provided for.

Other changes

As mentioned earlier, it’s important to write a new Will whenever you experience a change in the relationships you share with people named in your Will. Not only does changing your Will allow you to alter your bequests, but you may wish to change the nominated executor should your relationship with them change.

7. Dying intestate: What happens if you die without a Will?

A Will is a legally binding document that explains how you wish for your estate to be distributed when you die. If you die without a Will (or pass away with an invalid will), certain laws of intestacy apply.

If you die intestate, your estate will be distributed under a standard formula set out by state government law. The formula varies slightly between state and territory, but generally in absence of a Will, your assets will be distributed by default to your family – although perhaps not in accordance with your wishes or preferred allocation. The formula gives no consideration for how prominent a person was in your life, nor the value that you placed on possessions intended as gifts for someone in particular.

When no Will exits, disputes often arise and these arguments are often fought in Court. Legal costs are expensive and will usually come out of the estate, so this will reduce the amount that your loved ones end up receiving.

To avoid unnecessary disagreements, confusion, legal battles, fees, delays and family feuds – get a Will! Writing a Will is the best thing you can do to minimise the additional stress on your family and friends who will already be experiencing the pain of losing you.

The laws of intestacy

Passing away without a valid Will is known as dying ‘intestate’, which means the law determines how the estate is to be administered. These rules of intestacy follow a hierarchy of who should benefit from the estate. As every family relationship is different, those on the top of the list may not always be the most ideal recipients of your assets. And if you have no Will or and no beneficiaries that fit under the hierarchy, the state government is then entitled to your entire estate.

The formula of intestacy varies slightly between each Australian state and territory, so you can check which applies by contacting the Probate Office in your state. However, the general formula for distributing estate of a person who has died without a Will is as follows:

If the person died intestate and left behind a spouse, then all of the estate goes to them. It’s important to note that any other relatives or family, including your parents, siblings, niece, nephew or close friends are not accounted for if the person is survived by a spouse. In some cases, if there were children from another relationship, then some of the estate may also go to them, but that depends on the amount of money left in the estate after debts and expenses are paid.

Since 2017, Australian law has recognised de facto relationships regardless of gender, so same-sex relationships now have the same entitlements as heterosexual relationships. However, it’s important to note that if a person dies intestate and was in a de facto relationship that intestacy laws do not recognise, the partner and any of their dependants will not have any claim on the estate.

If a person died intestate and was survived by a spouse and children, the spouse is entitled to an initial $100,000 of the estate plus one third of the remainder. Children from both previous and current relationships are entitled to equal shares of the remaining two thirds. If any child is under the age of 18, their guardian will manage their inheritance until they turn 18. Minor children will receive their share when they turn 18. It’s important to note that estate law does not take into account any beneficiaries’ ability to manage their inheritance.

If a person died intestate and was survived by children but no spouse, all children (from past and present marriages) are entitled to equal shares of the estate. Again, if any children are minors, they will receive their benefit when they turn 18.

If a person dies intestate and had no spouse or children, then all the estate goes first to any surviving parents. If they are both alive, each parent will receive an equal share of half the estate. If there are no surviving parents, then the hierarchy is generally as follows:

  • any surviving siblings are entitled to equal shares of the estate; then
  • surviving grandparents; then
  • uncles and aunts; then
  • cousins

If a person who dies intestate, an Administrator, usually a family member, will be appointed to execute the estate in accordance with laws of intestacy. However, an administrator is not an executor and has limited powers, which will be restricted by the rules of Probate in the applicable state or territory.

An Executor is responsible for taking ownership of the deceased estate and distributing the assets.
An Executor is responsible for taking ownership of the deceased estate and distributing the assets.

8. Who should I choose as my Executor?

You may either appoint one, or more than one Executor to act together. Joint Executors cannot make a decision without the other’s knowledge. The person, or people, who will act as Executor of your Will are entirely your choice and it’s best to choose someone you can trust. A family member, close friend or trusted advisor will generally be named as Executor of the Will, but some people do appoint a solicitor. However, it is not necessary to hold any professional qualifications to act as Executor.

Choosing the right Executor is vital to ensuring your estate is properly distributed. It’s an important role as they are responsible for taking ownership of the deceased estate and distribute the assets to the beneficiaries in accordance with the Will. An executor will also be responsible for arranging and paying for the funeral and other administrative expenses of the deceased. So, nominating the wrong person for the job could cost the estate time and money. You can find out more about the roles of an executor here.

There is also risk the process can be dragged out, causing long delays and a period of anxiety for the beneficiaries while they wait for their inheritance.

The Executor of your Will cannot be a witness to the signing of the Will, however they can be a beneficiary, providing they are 18 years of age or older. They must also be willing to take on the task.

Often the person inheriting the greatest share is nominated as executor, unless the beneficiary is a minor at the time of your death. However, choosing an older person as your Executor could also be problematic as you should not nominate someone who is likely to predecease you (die before you). Age and health should always be considered.

Other considerations when choosing an Executor include: a person’s organisation skills, ability to manage details, their knowledge of all beneficiaries’ whereabouts and their travel time to the beneficiaries. If the person you choose moves to another country, it may be easier to write a new Will that nominates a different person to perform the task. If a beneficiary has moved house or died since the Will was made, it may cause difficulties for the executor.

Renouncing Executor duties

The person, or people, nominated may withdraw from being your executor, either before or after you die. If they wish to withdraw before you die, you must make a new Will that names a new Executor. If the executor elects to withdraw after you die, they must write a letter of renunciation and lodge it with their local Probate Office.

Executor suggestion for married or de facto couples

Many married or de facto couples will nominate their spouse as the only Executor, but also add in a clause that names a second Executor in the event that they both die at the same time. To do this, write in your spouse’s name first, then add a clause that names an alternate Executor (or Executors).

Some married people may instead choose to appoint their spouse and one child, or all children, to ‘act jointly and severally’. This means that each nominated Executor must work together to make decisions and manage the Will ’s wishes. Joint Executors cannot make a decision without the other’s knowledge.

Executor suggestion for single people

If you are single, you may choose to appoint anyone as the Executor of your Will who is over the age of 18, whom you trust. A single person will usually appoint a parent or both parents to be executors, or an older sibling, until they reach an age where they may have their own children who are able to take over the role. Perhaps this may not be for another 20-30 years, and your circumstances will likely change many times before then. It’s important to write a new Will to accommodate significant life changes, for example marriage, or major purchases.

Appointing adult children as Executor

If you have adult children, you may appoint them as Executor or alternative Executor to your spouse. More than one adult child may also be chosen to act jointly. If you do this, you should write out all of their full names and addresses, and state that are to act jointly. The advantage of choosing more than one Executor means there will be someone to take on the role if an Executor either dies or renounces the duty. The disadvantage of nominating multiple executors to act jointly is it can slow down the process if all parties have difficulty making decisions and agreeing jointly in accordance with your wishes.

Trust fund for children or minors

If you have children or dependents under the age of 18, your chosen Executor will also act as a trustee for a trust you might set up for them. The nominated trustee can administer any money or trust fund you’ve allocated to care for your children or dependants.

The trustee may either be the same person you appoint as guardian of your children, or someone else entirely whom you trust with this responsibility. Please note that appointing a guardian is separate to appointing a trust for minors.

Include a specific bequest clause on your Will document to leave a trust of money or property to a minor. On the bequest clause, you will need to nominate who will receive the benefit and how you would like it administered. You will also need to indicate at what age the beneficiary will be allowed to gain access to the benefit.

Executor identity

To accurately identify and make it easier to locate any person chosen as Executor of your Will when the time comes to fulfil their duties, it’s important to list their full name, address, contact phone numbers and occupation.

You can read more about executors in our Executor guide: What can be paid out of a deceased estate account?

9. Beneficiaries

Beneficiaries are the people you nominate in your Will to be gifted items from your estate. A beneficiary does not need to be an individual – it can be a person, group of people, or an organisation. When nominating a beneficiary in your Will, you’ll need to include some clear identifying information about them to help your executor find them. You must include their full name, occupation and address.

When you’re deciding on what to gift a benefactor, it’s important to consider their circumstances. For example, if your daughter lives in a small inner-city apartment, she will probably have little use for a pool table. If you’re bequeathing a property with a mortgage, you’ll also need to consider if the person you’re gifting it to has the financial means to meet the repayments. If not, they might be forced to sell it.

If a beneficiary predeceases you (dies before you), any items gifted to them will form part of your Residuary Estate. (explained further in section 11). To avoid this, you may wish to make a new Will naming a different beneficiary. Bequests will be explained in the next step.

Contact details often change

Providing the name, address and occupation for anyone named in your Will is to help your executor locate the correct people when they need to. If your executor needs to contact a beneficiary, for example: Kyle Smith, doctor, of 123 Bare Street, Flemington, Victoria. The executor will want to ensure they have tracked down the correct beneficiary named in the Will, who is the same Kyle Smith who lived at that address when the Will was written.

Beneficiaries are the people you nominate in your Will to be gifted items from your estate.
Beneficiaries are the people you nominate in your Will to be gifted money and other items from your estate.

10. Bequests

Bequests are items that you own (chattels) that you wish to leave as gifts in your Will. You can only bequeath items that you own. You can make Specific Bequests and General Bequests.

For each bequest, you will need to write down the item or gift, along with the beneficiary’s name, their relationship to you, occupation and full address. For example: “I leave my entire comic book collection to my brother Kyle Smith, doctor, of 123 Bare Street, Flemington, Victoria, 3031”. If you provide clear information, it will make it easier to identify and locate the intended beneficiary, leaving no room for arguments.

If one of your beneficiaries dies before you, whatever you intended to leave them will form part of what your residuary estate. The residuary estate is made up of the assets that you have not otherwise allocated as either a specific or general bequest. Residuary Estates are discussed further, in section 11 below.

It’s important to go through your bequests carefully to ensure you don’t leave the same item twice, or leave room for ambiguity. For example, you may want to leave your rocking chair to your eldest granddaughter as a specific bequest while also leaving all your furniture to your son as a general bequest. This could create confusion and potentially a family argument. To make your intentions clear, it’s important to indicate that the general bequest of furniture is ‘minus any items already bequeathed’. Alternatively, you might write in a clause along the lines of: “I leave all my furniture not hereby otherwise disposed of, to my brother Frank Noman, electrician, of 12 Fake Street, Mornington, Victoria, 3931.”

Specific Bequests

A ‘Specific Bequest’ is a gift you are going to specify individually, which is identifiable by particular marking, name, or identifying character. This is the term used when you nominate a specific item – such as your car; a specified amount of money or percentage of your bank account; a particular family heirloom like a ring or another piece of jewellery; or a particular collectable – to a specific person, group or organisation. You’ll need to describe in as much detail as possible, the item you wish to give as a Specific Bequest, particularly if you have more than one similar type of the item. To help avoid confusion, note any identifiable markings, brands, or other characteristics. You may even wish to either label them, or take photos and name the pictures, or even and include an inventory of pictures. If you’re going to the trouble of doing this, it’s a good idea to keep it with your Will, in the same envelope, and give a copy to your executor or let them know where to find it. It’s important to note that you do not staple anything to the Will or attach it in any way.

There is no need to list every item you own individually in your Will, unless there are special circumstances for itemising specific bequests, as it will make your executor’s task particularly difficult. Being too specific can also leave your Will at risk of being disputed or contested if you were to sell, lose, damage, replace, or give away any of the specific items before your death. If you no longer own a specific item, you cannot gift it in your Will.

Bequests of money – ‘legacies’

A ‘legacy’ bequest is the term for a gift of a particular sum of money left to a specific person, group of people, or organisation. Legacies are distributed before any general or residuary bequests. When completing your Will, place legacies under the category of ‘Specific Bequests’.

As with other bequests, you will need to write the full name, occupation and address of any person or group you wish to leave a legacy of, along with the nominated amount gifted. For example: “I leave to my brother Kyle Smith, doctor, of 123 Bare Street, Flemington, Victoria, 3031, the sum of $25,000”. The important thing to note with a legacy is to ensure you actually have the specified amount of money available when you die. To get around this, you can specify a percentage of your estate, rather than a fixed dollar amount, if you’re not sure of your estate’s value.

General Bequests

A ‘General Bequest’ is when an entire grouping or collection of assets is left to a person, group or organisation, for example all your furniture, your entire comic book collection, all your home and contents, or all your wine.

Usually married or de facto couples will leave their house and contents to the surviving spouse. However, if you are married or have a de facto partner, you will need to check your mortgage papers before you write your Will. You need to determine whether you are ‘Tenants in Common’ or ‘Joint Tenants’ as property in joint names will not automatically pass to the surviving partner. This is discussed further in section 18, under Joint Property Ownership.

If a mortgage exists, whoever inherits your home and property also inherits the remaining mortgage, so ensure the person you leave it to can keep up with the mortgage. If they can’t afford it, they may have to sell the property. Another thing to note is that any car in your possession is considered to be part of your household furniture, unless otherwise stated. If you instead wish for your car to be left specifically to one person, it needs to be noted as a Specific Bequest. Likewise, if you wish to leave your household furniture to a different individual as your home and property, you will need to make a Specific Bequest for this in your Will.

Bequests to charities

There is also the option to leave part or all of your estate to a particular charity. To make a charitable bequest to a charity of your choice and to avoid any possible misunderstanding or argument, it is important to clearly and specifically identify your preferred charity. You must ensure you know the charity’s complete and correct name. If you’re planning on support a particular charity in your Will, you should call their Bequests Officer to let them know and to get the correct name and address or ABN details. Charities also like to have the opportunity to thank donors where they can. Speaking to them in person also allows them to tell you about how they intend use your gift.

A charitable bequest also needs to be noted in your Will document as a Specific Bequest. For example, you might write: “I give to Cancer Council Victoria (ABN 61 426 486 715) the sum of $10,000 for its general purposes”. You may instead nominate a percentage of your residual estate, or a percentage of the whole of your estate, rather than a dollar amount.

If you choose to leave your entire estate to a nominated charity, the general approach is to write: “I give to the whole (or x %) of my residuary estate, not otherwise disposed of”. It’s important to note that charities sometime may change names, merge or even disappear altogether. To get around this, you should also add the following line after your charitable bequest: “If the gift to cannot take effect then I request my executor to pay the gift to the charitable organisation in Australia which my executor considers most nearly fulfils the objects I intend to benefit.”

11. Residual Estates

After all general and specific assets have been allocated to beneficiaries as per the Will, what’s remaining forms the ‘Residuary Estate’.

Your residuary estate is how you allocate the remainder of your assets. If you fail to nominate a benefactor to the rest of your estate, you will be deemed to have died ‘partially intestate’ and everything you’ve overlooked will be divided according to the formula set by law used for intestacy. To avoid this, the common approach is to add in a ‘residuary clause’. Your residuary clause will allocate any overlooked, unclaimed or remaining items or assets of the estate to your chosen person or organisation.

The Residuary Estate also includes any items or assets which you have purchased, inherited or received since writing your Will that haven’t been included in your general or specific bequests, or allocated to a beneficiary. Also forming the Residuary Estate are any gifts which have been allocated to beneficiaries who predecease you (or die before you). Nominate a beneficiary of your Residuary Estate as well as an alternate beneficiary in the event they predecease you. People generally nominate their spouse or very close family member, in the first instance, to receive their residuary estate. You will do this in the same way as a general or specific bequest, by including their full name, occupation, address, for example: “To Sam Jones, carpenter, 13 Imaginary Way, Darlinghurst, New South Wales, 2010, I give the residue of my estate not otherwise disposed of by this Will”. Then nominate an alternative beneficiary of your Residuary Estate, providing the same identification details as the first.

12. How to disinherit relatives (by accident and intentionally)

However, if you purposefully want to disinherit a close relative or dependant out of your Will, such as a child or spouse, it’s not as easy as simply leaving their name out. Dependants who are left out of a Will, or who aren’t left as much as they expect, are able to apply for a proportion of your estate for their maintenance.

To discourage your Will being challenged, you should include a supplementary statement to explain that you are not providing for a dependant or close relative, for example: “I leave my son/daughter/spouse nothing in this Will”. Acknowledging you have intentionally left a close relative or dependent out of your Will won’t prevent that person from challenging the Will, but it means they can’t argue that they have simply been overlooked or forgotten. This can be particularly beneficial if you are advancing in years or suffering from illness or stress at the time you made your Will. In cases where there is an allegation that the deceased lacked the full capacity when they wrote the Will, often due to dementia, its validity can be challenged. So stating that you knowingly intended to disinherit the person can mitigate the opportunity for it to be legally challenged.

The laws relating to disinheriting relatives from a Will vary between state and territory, so consult a solicitor or estate planning professional. There are also additional steps you can take to limit the chances of a successful challenge if you suspect a relative may challenge the validity of your Will, so seeking legal advice is recommended to ensure this is done correctly.

13. Guardianship of minor children

Assets and money aren’t the only things Wills are for. They also specify ‘guardianship’, or who will take care of your children or dependents if you pass away as the only surviving parent. The decision is especially crucial if you have young children, so it’s important to think about who you would like to care for them after you die.

If you didn’t nominate someone to care for your children until they turn 18 years of age, the family court will appoint someone on your behalf. This could be problematic if your closest relative is not the most suitable for the huge responsibility.

The person, or people, you choose as guardian for your children is entirely your decision, however there are a few major factors you should consider. Firstly, you should carefully consider your children’s wishes, including who they get along well with. And secondly, that the person you have chosen as guardian will accept the huge responsibility.

When nominating a guardian in your Will, you may choose two people to ‘act jointly’. If you decide to go down this path, ensure that they both are comfortable with the responsibility and have the capability to care for a child until they turn 18. You may nominate an alternate guardian, in case your first choice decides they don’t want to take on the responsibility after you die.

It’s important to discuss your choice of guardianship with any guardian or alternate you intend to write in your Will before nominating them, and explain the implications of the responsibility. If you are writing in specific conditions for the guardian to follow, it’s also important to discuss these wishes with the intended guardian. Just be mindful that your wishes may not be able to be followed exactly as you intend if future conditions change. For example, you may want your child to attend a particular school, but it may close by the time of your death or may not be taking enrolments. Or your nominated guardian may have to move interstate or overseas for work, which could make it impossible to fulfil a particular wish. So it’s important to be practical with your guardian instructions.

It’s also worth noting that natural parents have custody of their own children by default. So, if one parent dies, the other will carry on custody of their child.

If your spouse is the child’s natural parent, there’s no need to nominate them as guardian. If you are separated or divorced from the child’s other natural parent, the other natural parent will usually receive automatic guardianship when you die, even if you nominate your current spouse as guardian in your Will.

It’s also vital to appoint a guardian so the children have someone to oversee any money that is left to them. Not doing so exposes loved ones to needless stress and financial hardship especially if legal proceedings are required.

It’s also important to note that a guardian can be the Executor of the Will, however a person you nominate as a guardian cannot be a witness.

Wills also specify guardianship, or who will take care of your children if you die as the sole surviving parent.
Wills also specify guardianship, or who will take care of your children if you die as the sole surviving parent.

14. What is a Minor’s Trust?

A ‘Minor’s Trust’ is designed to manage and protect assets or gifts of money for a child until they reach a specified age – which is completely up to you. You can include a clause to specify when minor beneficiaries are to receive their share of your estate. This is usually 18, 21 or 25 years of age, however it can also be when a specific event occurs or milestone is achieved, for instance, the completion of tertiary education.

The Executor of the Will is in charge of the trust. The Executor has the necessary power to provide the money for the child in their care when they reach the nominated age you choose.

When determining the age a child will receive the benefit, you might take into consideration the need to access the funds before they reach adulthood if they may need to pay for university tuition sooner.

Can minors access trust funds before the age of 18?

Some minor trusts are intended to provide funds to benefit a minor during childhood, whereas others may not allow any expenditure until the minor reaches the age of maturity (18). Some trust deeds specify that funds may be used for specific purposes, like education, or medical expenses. This can be particularly important in instances where a minor has a disability or illness.

It’s important to note that if you indicate that the minor only receives the benefit at a nominated age, they won’t receive any other gift or bequest noted in other parts of the Will until that age. For example, if you also leave a Specific or General Bequest, or your Residuary Estate to a minor, the minor beneficiary generally will not have access to any benefit until they reach the age nominated.

If a benefit is left in trust to a minor, they may apply to the Executor for funds before they reach the nominated age. It will be up to the Executor to determine if they think it’s necessary to release the funds early.

How to access trust assets after turning 18

Even if the nominate age on the Will is older than 18, the beneficiary is eligible to apply to access their entitlement when they turn 18 years of age. They may do this by applying to the Executor or through the court.

Please note, this Bare Cremation guide to Wills is not intended for complex testamentary trust provisions. If you wish to include more detailed instructions with your Will, consult a solicitor.

15. Codicils and amendments to your existing Will

A Codicil is the legal term for an amendment to an existing Will. If you wish to make changes to a Will after it has been signed and witnessed, it’s not as simple as crossing a few things out and adding a note in its place. To amend an existing Will, you will have to make an official alteration, or codicil. This must be formally completed, signed and witnessed in the same way as a Will is executed, outlining the amendments you wish to make to your original Will.

However, it’s often safer to make a new Will altogether, as additional codicil pages may be become misplaced or separated from the original Will, particularly if you are adding multiple codicils as years go by. Additional codicils also leave room for error if they include conflicting bequests or instructions. A new Will immediately revokes all Wills prepared before it.

If you decide to make a codicil rather than a new Will, it must be kept with your original completed Will. However, it’s very important that any codicil or additional loose pages not part of the original Will are NOT ATTACHED to the Will document. It’s a good idea to keep them loose, but bundled together in an envelope, but not stapled, pinned, or paperclipped together. It’s also important to note not to mark the additional page in any way, or not use any clips or staples on the page either.

16. What happens if I run out of space?

If you run out of space at any point while writing a clause, you can add extra pages, just leave enough room at the end of the clause to write “to be continued on page X”. On a fresh piece of paper, label it as “page X” then write “continuation of Clause Y”. Then you can continue writing.

Any additional pages must be signed and witnessed in the same way as the rest of your Will – and by the same witness – or they will not be considered part of the legal document. It’s also beneficial to ensuring the witnesses’ details are written exactly the same as they appear on the Will Form. The same pen needs to be used, and you’ll need to date and sign any additional pages in the same way as you did your Will.

17. Blank clauses

If you are writing your Will and decide a particular clause is not relevant to you, just put a line through any area of the Will Form that doesn’t apply. Doing this prevents anyone else from inserting their own provisions into the Will later, without your knowledge.

As you are crossing out a section prior to witnessing, it is not an error or alteration that needs to be witnessed and initialed.

When making a Will, it's important to understand if you own a property as a joint tenant, or tenant in common as this determines what you can bequeath.
When making a Will, it’s important to understand if you own a property as a joint tenant, or tenant in common as this determines what you can bequeath.

18. Joint property ownership

What’s the difference between joint tenants and tenants in common?

You can own a property asset with another person in one of two different ways: either as a ‘joint tenant’ or as a ‘tenant in common’. It’s important to understand which applies to you.

Property ownership as joint tenants

Joint tenancy is when two or more people own an equal share of a property, each with equal rights and obligations. When one of the owners in a joint tenancy dies, their share in the property passes to the surviving joint tenant or tenants without the property having to go through the courts. If you are a joint tenant, your share is not regarded as an asset of your deceased estate and you cannot leave your share to another person.

Property ownership as tenants in common

If you are a tenant in common, you may leave your share of the joint property in your Will to gift as you wish. When a tenant in common dies, their share of your property becomes an asset of their estate. It is however possible to change property ownership by contacting your lender or the Lands Titles Office in your state or territory.

Overseas property

Property (land or buildings) assets in another country, may need to be disposed of in a manner that is legally valid in that country. So you will need to ensure you have a Will that is accepted by the laws of that country. The country’s embassy or consulate will be able to explain the best way to deal with any assets in their country.

19. Capital Gains Tax

Capital gains tax is the tax paid on any profit from the sale of certain assets, such as real estate or shares. Generally, capital gains tax doesn’t apply when you inherit an asset. However, it may apply when you later sell or otherwise dispose of the asset.

If someone makes a capital gain from selling assets that were part of an estate, capital gains tax rules apply. Capital gains tax is applied to the difference between what it cost the person to acquire the asset and what they receive when they dispose of it. When someone makes a capital gain, it is added to their assessable income and may significantly increase the tax they need to pay when it comes to their personal annual income tax return.

Any capital gain or loss made on any assets acquired since 20 September 1985 are subject to capital gains tax unless specifically excluded. So if your Executor or a Beneficiary sells or disposes of an asset received from your estate, they may have to pay capital gains tax. Aside from real estate, shares, cryptocurrency and similar investments, capital gains tax also applies to personal use assets including boats, furniture valued more than $10,000 value per piece, jewellery purchased for more than $500, electrical goods and household items. Some assets are exempt from capital gains tax, such as: property as your main residence (however there are some exceptions), a car or motorcycle, depreciating assets, and any personal use asset that was acquired for less than $10,000.

How capital gains tax works with deceased estates

Here’s how capital gains tax works with deceased estates. As mentioned earlier, transfer of property ownership from a deceased estate to a beneficiary does not constitute a ‘sale’, so there is no capital gains tax paid on that transaction. However capital gains tax will apply if your beneficiary decides to sell that asset.

For capital gains tax purposes, any joint tenants are regarded as Tenants in Common, owning equal shares.

If making charitable bequests to a tax-exempt charity or church, or a non-resident beneficiary, your estate will cover the capital gains tax. However, charitable bequests of cash donations do not attract capital gains tax.

If for example, a beneficiary inherits a large amount of money from a bequest of shares or real estate, the beneficiary will be legally responsible to pay the capital gains tax on any profits when the asset is sold. Capital gains tax is generally not applied to family motor vehicles or motorcycles, in addition to assets acquired prior to September 20, 1985.

Capital Gains Tax can be complicated, so talk to your accountant or financial representative if you have any questions. You can also call the Australian Tax Office on 132 861. The Australian Tax Office website also has some helpful information available, with some excellent free resources on capital gains taxes.

20. What is Probate?

Probate is a legal process required to validate a deceased person’s Will, to be carried out by an Executor named in the Will. There are two types of these grants: Probate, where there is a Will; and Letters of Administration, where there is no Will. Grants of Probate and Letters of Administration are collectively referred to as Grants of Representation. A Grant of Representation is a legal document authorising an Executor (or Executors) to manage a deceased estate in accordance with the provisions of their Will.

When applying for probate, you will need to complete a number of forms and provide documents such as a Death Certificate.

A Grant of Representation is needed before a deceased estate can be distributed to any beneficiaries. Once it has been granted, the court issues a document confirming that the Will is valid and also confirms the appointment of the Executor.

How do Letters of Administration work?

Letters of Administration are the court’s approval for someone to administer the estate of a person who has died without a valid Will. The Next of Kin usually applies to administer the estate.

Why do you need a Grant of Representation?

A Grant of Probate is officially called a Grant of Representation. A Grant of Representation gives an Executor of a Will or Administrator the legal right to administer the estate of a person who has died. A Grant of Representation allows the assets to be transferred to the name of the Executor or Administrator so they can manage them: distribute them to beneficiaries, or sell them. Without the Grant of Representation, assets cannot be distributed to any beneficiaries.

If the Will involves transfer of property; if banks or financial institutions require probate; or if there is a dispute over the contents of the Will, an Executor must attend to probate.

In the meantime, the deceased person’s bank accounts will be frozen until grant of representation is obtained.

How to apply for a Grant of Representation

The process differs depending on the state or territory. But generally, if either a Grant of Probate or Letter of Administration are required, first you will first to publish a statutory notice of your intention to apply for a Grant of Representation with the Supreme Court in the relevant state. This will allow any creditors and family members owed money by the deceased estate to make a claim. It also allows any other nominated executors, or anyone who may have another Will to discuss the intended application.

You’ll need to prepare the relevant documents for submission, then apply to the Supreme Court in your state.

If the deceased left no valid Will, or a dispute between multiple nominated Executors has arisen, seeking legal advice is advised.

You’ll need to prepare the relevant documents for submission, then apply to the Supreme Court in your state. You can find out more with the following links:

What can be paid out of a deceased estate account?

An Executor, Next of Kin or Administrator can usually request that specific existing payments continue, or arrange assistance with paying for funeral expenses if needed.

The bank or financial institution can generally release funds from the estate to pay for funeral costs while the account is frozen. This can be paid either directly from the bank to the funeral provider; to the Executor or Administrator; or the person who organised or paid for the funeral with their own money. They just need to provide the bank with an invoice or receipt for the funeral service, a death certificate and a copy of the Will.

The funeral director will usually assist the executor by taking care of the paperwork and applying for the death certificate. The Executor signs the death certificate document and it’s forwarded to the Registrar of Births, Deaths and Marriages in your state.

The financial institution should also be able to release funds from the deceased estate to cover other costs like unpaid bills or expenses relating to the estate, like rates and body corporate fees.

There’s also the option of setting up an ‘estate of the late’ transaction account with the bank, which will enable the executor to access money from the estate to cover estate expenses. The bank can also release funds to cover business expenses upon request from the executor or Next of Kin; company director, chairman secretary or treasurer; or a trustee.

In cases where Probate is not required, the bank may simply request the Executor to sign an indemnity before releasing the deceased’s funds.

You can find out more in our Executor guide: What can be paid out of a deceased estate account?

21. How to contest a Will?

Sometimes people feel that they have been unfairly left out as a beneficiary of a Will after a loved one passes. Having several interested parties in the deceased’s estate often creates conflict between family members. Sometimes assets can even get held up in the court process.

Who can contest a Will?

The law relating to who is eligible to contest a Will differs for each state. However, any person who feels they have a right to benefit from your Will can generally challenge a Will, but some conditions may apply.

Will disputes generally come about for a number of reasons, including the following:

Proper provision was not made for the person in the Will. For example, if you financially support a dependant or if you have a dutiful obligation to a person but they are left out of the Will. It’s important to note that once a child turns 18, a parent is no longer obliged to support them. This means that if an adult child is left out of your Will that you no longer support financially, they do not necessarily have a claim, unless they can prove in court that they were financially dependent on you.

Any family member of the deceased may also challenge the Will. However, to be successful, they would also need to prove that the deceased was obliged to provide adequately for them in the Will.

Other reasons a Will may be challenged include where:

  • a promise was made to the person that they would be left a certain part of the estate and that has not occurred;
  • there was a clear error in the Will;
  • the Will-maker lacked mental capacity to make the Will or was subject to undue influence.

In any of these cases, a person intending to dispute your Will needs to show a court they have a claim on your estate in order to challenge it.

Read more information on contesting a Will in our article. How to contest a Will: 12 FAQs about estate claims answered.

22. Witnessing your Will

A Will is not a valid legal document in Australia unless it’s signed by the Will-maker in the presence of two witnesses. The Will is not legally valid if there is only one witness. In some states both the witnesses and the Will-maker need to be present at the same time, but other states permit the second witness to sign later.

Most commonly you will write your Will when the witnesses are not present, but you must not date or sign the document until the witnesses are present and are watching you do so. The witnesses’ job is to ‘witness’ you sign the Will, so you must sign it in front of them. However, the witnesses do not need to know the contents of the Will.

In the event that the validity of your Will is challenged after your death, your witnesses will be called upon in the Probate Court (a section of the Supreme Court).

You don’t need anyone official, like a Justice of the Peace, to bear witness to your Will. Witnesses just need to be 18 years old or over, with full mental capacity, and physically present at the time of signing the Will.

Who cannot be a witness to your Will

As mentioned above, any adult with full mental capacity may be witness to your Will, however there are some exceptions.

Firstly, an executor cannot be a witness, not can a person you nominate as a guardian.

In some Australian states, a beneficiary will lose their benefit from the Will if they are a witness. While some Australian states permit beneficiaries to also be witnesses, the common approach is to choose someone else to witness. Impartiality is important when it comes to Wills, particularly if it is contested in court, so having someone who is not a beneficiary witness your Will ensures impartiality and protects them from accusations of undue influence. For this reason, the common approach is to avoid having the partner of a beneficiary bear witness to your Will.

A Will needs to be signed by two witnesses.
A Will is not a valid legal document in Australia unless it’s signed by the Will-maker in the presence of two witnesses.

23. How to sign your Will

After you have finished filling out your Will Form it must be printed (if filled out online) then signed. Signing the Will correctly is vital to ensure it is valid.

The Will-maker (testator) and both witnesses must be present at the same time of signing. They must also use the same pen to sign and date the Will Form, including any additional pages or correction notations, or codicils added to your Will. Use a black or dark blue pen. If your Will is contested in court, the signing and witnessing process may be questioned, so the Will may be deemed invalid if the correct process has not been followed.

Signing and dating each page of the Will is not necessary, but it’s a good idea to do so on the bottom of each page, to ensure absolute certainty that extra pages have not been inserted, removed or replaced later.

If the Will-maker has run out of space to make further instructions at any point, which may happen when listing bequests, they may add in extra pages with notations that the clause has continued to another page. So any additional pages must be signed and witnessed in the same way as the rest of your Will – and by the same witnesses – or they will not be considered part of the legal document. It’s also beneficial to ensuring the witnesses’ details are written exactly the same as they appear on the Will Form. The same pen needs to be used, and you’ll need to date and sign any additional pages in the same way as you did your Will.

You and each of your witnesses MUST be present together to sign the Will Form. The three of you will need to sign the last page of the Will Form. The witnesses will need to write in their full name, address and occupation. Don’t forget, the three of you must use the same pen, so take turns signing and filling in the details.

Aside from not having a witness sign the document, the Will-maker can sometimes pass without themselves having finalised and signed it. If it’s not signed, it’s simply not valid. So ensure you don’t forget this vital step.

24. Common Will-making Mistakes

Even if you have followed all of the steps in this guide, there’s still room for error, particularly if your Will has not kept up to date to account for significant life events. Simple mistakes can lead to disinheriting a significant loved one and blunders can open the door for your Will to be officially contested – or made void altogether.

It’s always best to practice on spare paper before starting to write Will. If you make any mistakes on the Will form before it’s signed, you must initial it as close as possible to the mistake and your witnesses will also need to initial as close as possible to your initials. It is often safest to rewrite your Will if you notice a mistake after it’s been signed and witnessed.

For other examples of the common mistakes when making a will, read our 21 common mistakes to avoid when making a Will here.

25. Summary of important points

Below is a summary of the most important points when writing your Will;

  • Before you begin to write or type anything into your Will document, read through this entire Complete Guide to Wills first;
  • Practice writing your Will on a separate piece of paper or document before you begin writing your Will;
  • Ensure you update your Will when your circumstances change, particularly with new relationships or previous relationships ending;
  • Nominate an Executor who is over 18 years of age and whom you trust with the important task, and let them know of your decision;
  • If you have any children or dependents, give serious thought to who you’d like to name as guardian and advise them of your wishes before nominating them in your Will;
  • Choose two adults to witness your Will at the same time, who are not also your Executor or a beneficiary;
  • Take an inventory of your assets before you start writing your Will Form;
  • List of all your Specific Bequests and General Bequests;
  • Confirm all full contact details and correct government names for everyone you intend to mention in your Will;
  • Make sure you complete the Residuary clause;
  • Ensure you do not staple, paper clip, or attach any additional pages, codicils or extra documents to your Will in any way. Keep any additional pages loose with you Will, perhaps in the same envelope;
  • If you have joint property with another person, ascertain your property ownership status;
  • Understand capital gains tax and how it may impact your beneficiaries;
  • Ensure your Will is signed in the presence of yourself and both your witnesses, using the same pen;
  • When completed, make copies of your Will and store your original either with your Executor or in a safe place (preferably not your residence);
  • Mark any copies of your Will ‘copy’ but do not mark the original ‘original’ or similar;
  • If your circumstance is complicated, or if you have any questions, consult a solicitor or qualified legal professional.
A Last Will & Testament
Keep a copy of your Will in a safe place and give another copy, or the original, to your Executor or solicitor.

26. How do I store a Will?

Your Will does not need to be lodged or submitted anywhere. Just ensure you make one! Keep a copy in a safe place and give another copy, or the original, to your Executor or solicitor.

After your death, your Executor must be able to easily find your Will, so you will have needed to store it someplace secure but accessible. The common approach is to not keep your original Will at your place of residence, because if the property is destroyed by fire your Will may never be found. However, there are a number of many ways you can safely store your Will.

Storing your Will at your bank, usually in a safe deposit box or envelope, allows you to keep it with any mortgage documents. Your bank will be able to confirm if this service is available to you and if there is a fee. Usually, the bank will allow you to open a safe deposit box or envelope under both your name and the name of your Executor. That will mean your Executor will have authorised access at the time when they need it.

If your box or envelope is in your name only, your Executor can generally gain access to it if they provide written proof that they are the Executor named in your Will. In most cases, your Executor can do this by presenting a copy of the Will and their own ID to the bank.

Making copies of your Will

Once your Will has been signed by you and your two witnesses, make one or two copies – you shouldn’t need any more than that. It’s handy to store one copy (but not the original) with your personal documents for reference as you wish.

Your original Will should be kept with your Executor, unless you are opening a safe deposit box/envelope at the bank that gives them access. In that case, it’s a good idea to give your Executor a copy (in addition to access to the deposit box). That way, they can refer to your funeral wishes if instructions are made for this in your Will, as funeral arrangements generally need to be made immediately after your death. If your Executor cannot find your Will (or even a copy of it) before the funeral, they may not be able to carry out your wishes as you intended, which may be distressing for your family and friends. It can make your Executor’s task much easier if you keep a Funeral Instructions document loosely with your Will, if it’s not covered in detail in the Will itself. Just DO NOT staple or attach the additional pages to your Will in any way.

If your Executor’s residence burns down with your original Will destroyed in the fire, writing a new Will is usually the easiest way to replace it.

If your Executor lives with you, it’s best to keep the original Will document somewhere else for the reason already mentioned.

Whatever you decide as a Will storage option, make sure your Executor or someone you trust knows where your Will is kept and will be able to access it when it is needed.

Identifying copies of your Will

If you’re marking ‘copy’ on the copies of your Will, it’s important that you DO NOT mark ‘original’ or similar on your original Will. An original Will needs to have no additional markings.

It’s also important to note that a PDF version of your Will is not regarded as the original Will.

27. Executor Checklist

The following Executor Checklist outlines the key responsibilities and tasks an executor needs to attend to, to carry out someone’s final wishes:

  • Notify the deceased’s family, friends and employer of the death
  • Locate the original Will, or commence the process if held with a third-party like a bank or State Trustees, then store it safely. Making a copy is a safe way to reference it later on.
  • Check the Will for any funeral instructions
  • Check if a funeral has been prepaid then arrange the funeral with a funeral director
  • Check the funeral director has applied for the Death Certificate.
  • Obtain the Death Certificate
  • Stop any urgent services, eg visiting nurse or grocery deliveries
  • Place a funeral notice in the newspaper or social media. Your funeral director will be able to assist
  • Consider capacity of any surviving spouse/dependents. If applicable, identify guardian of children.
  • Call all creditors and financial institutions to notify of the death and cancel utilities, subscriptions and direct debits. In most cases you will need to provide date of death notifications to: Centrelink; Australian Taxation Office; superannuation fund; vehicle registration office; any utilities, services and subscriptions; professional service providers; insurers; banks, lenders and other financial institutions, etc. Checking for paper bills lying around the property, or bills that have been emailed will be a good place to start, however email access may require a password.
  • Protect the assets by checking if property and vehicle insurance is up to date.
  • Redirect mail to your postal address
  • Apply for Grant of Probate where necessary. See section 20 for more details.
  • Make a list of all assets of the estate and safely store them until they are distributed to beneficiaries.
  • Locate all bank records and information regarding financial assets to compile a complete financial record.
  • Identify and collect any money owed to the estate, pay all valid debts and liabilities.
  • Call a meeting of family and friends to talk about the Will and the distribution of the estate.
  • Manage any disputes and conflicts. If any disputes cannot be resolved with your mediation, seek legal advice before distributing any of the estate to beneficiaries.
  • Sell assets and list property for sale where required, however sales can’t be settled until probate has been granted
  • Establish any new trusts required and manage any existing trusts as required
  • Distribute estate to beneficiaries
  • Lodge a tax return for the current financial year
  • Ensure safe storage of original documents.

28. People to inform of my death

There are many other organisations and people that need to be contacted to advise of your passing and the funeral information.

Write this list on a clean sheet of A4 paper, either hand-written or typed up. Make the heading ‘People to inform of my death.

List the name, address (if known), phone number and their relationship to you. This list may include family; friends; employer or work colleagues; doctors and other health workers; clubs you are associated with; and financial institutions.

Store this list loosely with your Will, perhaps in an envelope, but DO NOT staple or attach it to your Will in any way.

29. Key contacts and personal details

In addition to the people to inform of your death list above, your Executor will need to know the details of various accounts and memberships you hold, in addition to other personal details. To make things a little easier, we have created a template checklist you can fill in, listing contact details and account information where necessary. You can download the template contact checklist here.

You should write this list on a clean sheet of A4 paper, either hand-written or using a computer to copy and paste the information and fill out. Make the heading ‘Key contacts and personal details’.

This list should also contain:

  • Your full name, including any middle names
  • Your address and telephone number
  • Your date of birth
  • Your tax file number
  • Your drivers licence number
  • Location of your Will
  • Location of your birth certificate and any other relevant documents like marriage or divorce certificate
  • Name and contact information of your Executor, their address, phone number and email address, and any other relevant details
  • Name and contact information of your lawyer or solicitor (if you have one)
  • Name and contact information of your accountant or financial advisor (if you have one)
  • Name and contact information of your family doctor
  • Name and contact information of your employer
  • Your superannuation fund details
  • Your mobile phone provider’s business name and phone number
  • Your internet provider’s business name and phone number
  • Other details of your utilities (power, water providers)
  • Your local council’s details
  • Centrelink details
  • Religious information, include place of worship and name and phone number of your priest or minister
  • Any access codes or passwords that your Executor may require
  • Any other additional information that may be helpful

Store this list loosely with your Will, perhaps in an envelope, but DO NOT staple or attach it to your Will in any way.

30. Making an asset inventory

When it comes time to action your Will, your Executor will need to know about your assets. So it is helpful if you make a list or inventory of your assets on a new sheet of A4 paper. You can either hand-write it or type it up.

Start with the heading ‘Asset Inventory’. Then list any items that you own that you would like to be left in your Will as bequests. This list should also contain account details and information about other financial assets, including:

  • Bank details – BSB and account numbers
  • Investments – bank, branch and account number
  • Safety deposit box or security envelope – bank and branch details
  • Shares and debentures – company information and any other relevant details
  • Real estate – addresses and locations of title deeds or rental contracts for every property you own
  • Insurance – name of the company, type of policy, policy number
  • Superannuation – company name, type of policy, policy number for all funds you have
  • Motor vehicle – make and model, registration number and approximate market value
  • Any additional assets

Store this list loosely with your Will, perhaps in an envelope, but DO NOT staple or attach it to your Will in any way.

31. Debts and liabilities

Your executor also needs to be aware of any debts and liabilities, so it will be helpful to make a list of these on a clean sheet of A4 paper. You can either hand-write or type the list. Start with the heading ‘Debts and Liabilities’ then list the following which apply:

  • Real estate mortgages and loans – bank/lender, branch and loan numbers;
  • Personal loans – bank, branch and loan number/s;
  • Credit cards – bank/institution, credit card number and expiry date;
  • Taxes owed – your Tax File Number, details of any amounts owed and any payment plans you have entered into with the Australian Tax Office (ATO);
  • Additional debts and liabilities – details of any other amounts that you owe: company/bank/institution name and account numbers;
  • Details of any other debts you can think of.

You should store this list loosely with your Will, perhaps in an envelope, but DO NOT staple or attach it to your Will in any way.

32. Superannuation

Most Australians will have a superannuation fund, or a fund that your employer would have paid into on a regular basis. Or perhaps you have a private fund that you have set up yourself. It can be common to even have more than one superannuation fund.

If you have a superannuation fund, you are considered a member of a fund, but you don’t own it. As you don’t own the superannuation fund, it’s not something you can bequeath in your Wills.

Your superannuation fund will be owned by the trustee of the fund, which is the company or institution where your superannuation fund is held. At the time of your death, the trustees will distribute your superannuation according to the terms of the superannuation deed. The person who you named as the beneficiary when you set up the fund will receive the superannuation benefit, rather than your estate. That is why you cannot leave your super fund to anyone in your Will.

If you are unsure who the beneficiary of your superannuation fund is, or to update this information, you will need to contact the trustee of your superannuation fund.

33. Funeral Wishes

Some people have very specific wishes about how they want their funeral and final disposition to be conducted. A funeral or memorial is the very last chance to celebrate a life well-lived. So making your funeral preferences known in your Will ensures your loved ones can honour your wishes to ‘go your own way’ – be it a specific funeral provider, or the type of memorial you’d like.

Planning a funeral can be very stressful for your surviving family and friends who will already be facing a difficult time coping with your death. So leaving your Executor or Next of Kin specific instructions for your funeral will be a great help.

Pre-paying your funeral

The average Australian today is well informed, price-conscious and non-traditional. So more than ever, many people are saying farewell to traditional funerals. In a recent study, we found more than 90% of Australians would prefer a simple, and non-traditional service over an expensive and traditional funeral, when the time comes. But if their wishes aren’t specified in their Will, there’s a high chance they’ll get a traditional, expensive funeral instead of what they really wanted.

Although a fairly new concept to some, a direct cremation allows families to separate the arrangements of a cremation without a traditional funeral church or chapel service. Without the need to involve a funeral home, a direct cremation allows the freedom and flexibility to personalise a loved one’s memorial separately, to match their unique personality – and at a fraction of the price.

To avoid the financial stress on your family later on, you can even arrange a prepaid funeral through Bare Cremation. Advising your Executor or Next of Kin of your funeral preferences in your Will ensures you’ll ‘go your own way’ when the time comes. To find out more, visit the Bare Cremation website here or call 1800 202 901.

Leaving funeral instructions

The more specific you are, the easier it will be for your Executor and loved ones to carry out your funeral wishes. Make your funeral wishes known on a fresh sheet of A4 paper, either by hand-writing or typing out your instructions.

Begin with the heading ‘Funeral Instructions’. Then note down information about your funeral wishes, including if you would like a burial or a cremation; if you have a preferred funeral director; and where you want to be buried, or if cremated – where you would like your ashes scattered. It’s important to include any information of a prepaid funeral plan you have purchased and the company’s contact details, as well as any other relevant information.

Below is an example of a Funeral Instructions page that you can copy if you wish. You do not need to include all of the choices as listed here, you just need to write in the preferences that apply to you, and what your wishes are.

When your Funeral Instructions page has been completed, you should store it loosely with your Will, perhaps in an envelope, but DO NOT staple or attach it to your Will in any way. It’s also a good idea to give a copy to your Executor, or at least let them know it exists and where it can be found.

Your funeral will likely be held within a few days of your death, so having this Funeral Instructions form accessible with help your Executor considerably.

34. Sample Funeral Instructions form

If you have pre-planned your funeral with a funeral director or you would like to make your funeral wishes known, you can make own Funeral Instructions document to assist your Executor. You may either hand-write it or type it up, using the below sample funeral instructions form as a guide.

You do not need to include all of these choices as listed here, they are merely options to prompt you as you complete your instructions. Simply include any preferences or instructions which apply.

I have completed this document to provide instructions concerning my funeral and final disposition arrangements and/or requests.

I, _____________________ of ________________

have a prepaid funeral plan for a burial / cremation arranged through __________________ _________________________. The location of my signed agreement is __________.

OR if you have not made funeral arrangements use this line instead:

I have not yet made funeral arrangements, but I direct to use the services of _____________ at _____________

at the time of my passing. Please call ___________ to make arrangements.

I direct my body, or the remainder of my body is buried at ______________________ .

OR for a cremation use the below line instead and remove any options which don’t apply:

I direct my body, or the remainder of my body is cremated. I would prefer the cremation to happen at ___________________________ . ______________ I’d prefer my ashes to be buried at __________________________ / kept at _________________________________ / Scattered at __________________________________.

I request that my funeral service be held at ___________________ <church, chapel, or other location> and the following observances be conducted ____________ .

Or if I died in interstate, I direct that my body or the remainder of my body is/is not disposed of near where I died by burial/cremation ; my remains are brought back to my home state or territory and buried at ________________________ / cremated . I’d prefer my ashes to be _____________________ .

Or if I died in overseas, I direct that my body or the remainder of my body is/is not disposed of near where I died by burial/cremation ; my remains are brought back to Australia and buried at ________________________ / cremated . I’d prefer my ashes to be _____________________ .

Signed: _______________________________ Dated: _______________________

Donating your body to medical science
Donating your body to science is a unique gift that will help with the advancement of medicine and science in Australia.

35. Organ and body donation

One organ and tissue donor can make a difference to the lives of up to 10 people. Donating your body to medical science is a unique gift that will help with the advancement of medicine and science in Australia and will benefit generations to come.

If you wish to either donate your organs or your body, this is a decision your loved ones may need to make immediately after your death, so it’s no use mentioning it in your Will as it will be too late by the time the Will is executed. However, you can let your wishes be known by writing or typing them out onto a separate clean A4 paper that is NOT attached to your Will document in any way. Use the heading ‘Organ Donation’ or ‘Body Donation’ and let your family or executor know it exists.

Even if you have formally registered your consent to donating organs you should discuss your decision with your family, as your Next of Kin must give their consent before any procedure goes ahead and have the option to override your decision. Grieving family members may well be more sensitive than you expect about how your body is treated after death, so make sure they understand your feelings about organ donation.

To become an organ donor, you will need to pre-register and become accepted in advance. However, there is no single register for body donation in Australia. There are a number of universities and research organisations across Australia that you can donate your body or certain tissues to, so you will need to contact the institution directly to apply.

In some Australian states, you may indicate your intention to be an organ donor on your Driver’s Licence. Again, once you’ve made the decision to be an organ donor it’s important to let your Executor and family know.

Organ donation template

Below is an organ donation template form that you can use to help ensure your wishes about organ donation are honoured when you die:

On your A4 page, write down your wishes to donate either part or all of your body for medical or scientific use. Keep a copy loose with your Will document, but DO NOT attach it to the Will in any way. As your family will need to make this decision immediately after you die, the common approach is to give a copy of your Will to your Executor or Next of Kin.

You can register for organ donation through the Australian Organ Donor Registeror through your existing myGov account. Helpful answers to some frequently asked questions about organ donation are also included on the Donate Life website here. For further information about organ donation, visit call the Australian Organ Donation Register on 1800 777 203.

Example: Organ Donation Form

I, _______________ of ______________________ direct that after my death, wish to donate all of my organs and tissues for medical treatment of others. This does/does not include scientific research.

Or, alternatively, if you don’t wish for specific organs to be used, use the below section instead and include only those which apply:

I, _______________ of ______________________ direct that after my death that my: Bone tissue Eye tissue Heart Heart valves Kidneys Liver Lungs Pancreas Skin tissue may be used for medical treatment of others. This does/does not include scientific research.

My blood type is ______________________

Signed: _______________________________

Dated: ________________________________

Body donation template

If you have already successfully registered with a university or institution to donate your body for medical research, below is a body donation template form that you can use to help ensure your wishes about organ donation are honoured when you die:

On your A4 page, write down your wishes to donate your body to medical science and the university or institution to which you have registered. Keep a copy loose with your Will document, but DO NOT attach it to the Will in any way. As your family will need to make this decision immediately after you die, the common approach is to provide a copy to you Executor or Next of Kin.

Example: Body Donation Form

I, _______________ of ______________________ direct that after my death, I wish for my body to be used for medical research.

I have registered for body donation with ______________________ . Please call _________________ to make arrangements immediately following my death.

Signed: _______________________________

Dated: ________________________________

You should store this list loosely with your Will, perhaps in an envelope, but DO NOT staple or attach it to your Will in any way.

To find out where you can donate your body to science and for more information about body donation, read our article Donating your body to medical science in Australia: What you need to know.

36. How to obtain a death certificate

The Funeral director will apply for a death certificate when they lodge the Death Registration. The usual process is that the Office will send the Death Certificate to the immediate family.

We hope this guide to preparing a Will helps you with your estate planning.

You might also find the following articles useful:

This Complete Guide to Wills is not legal advice. You should speak with your solicitor or accountant for specific advice on your personal or financial situation. This article is not intended for involved or intricate circumstances. You should seek professional guidance, particularly if you wish to include more detailed instructions. If you’d like a recommendation on estate planning professionals at any stage of the process, give us a call and we’d be happy to connect you with our specialist estate administration partners.

If you have any further questions or to get a quote for a prepaid cremation visit the Bare Cremation websiteor call 1800 202 901.

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