Estate planning is extremely important for every person to ensure that their assets and property are divided according to their wishes once they pass away. Due to its importance, the question of ‘how to make a Will Australia’ is often asked by many.
Before we explore how to make a Will in Australia, there are certain aspects related to Wills that need to be considered. These include things such as what makes a Will legally valid, and who is eligible to make a Will in Australia, among others. The aim of this article is to answer the question of how to make a Will in Australia.
How To Make A Will In Australia: What Makes A Will Legally Valid?
In Australia, the laws around Wills may vary based on different jurisdictions. In NSW, the Succession Act 2006 states all laws related to Wills.
When we’re wondering how to make a Will in Australia, we need to look at how to make a Will in Australia that is legally valid. There are certain criteria that need to be fulfilled in order to make a Will legally valid. These include:
- The Will must be made in writing;
- It needs to be signed by the Will-maker – also known as the testator; and
- It must be witnessed by two neutral parties, i.e. people who are not beneficiaries (those who receive a portion of entitlements from the testator) of the Will, or the spouse of the testator.
How To Make A Will In Australia: Eligibility Requirements
Firstly, the person needs to be over 18 years of age. This requirement will not generally apply if the person is married.
Secondly, it is important for the testator to have testamentary capacity at the time he or she is drafting the Will. Testamentary capacity is essentially the person’s mental ability to write and make a Will.
It is said that the testator has testamentary capacity if: –
- They are able to understand that they are executing a Will, and understand the effects of doing so;
- They comprehend the general nature and extent of their property; and
- They are aware of any moral obligations that they may have towards their family members or friends.
In summary, testamentary capacity refers to having a sound mind when drafting or executing a Will.
What Information Do You Need Before Making A Will?
Before you get started, there are a few things that you must keep in mind, as given below.
- Most importantly, every individual will require a comprehensive list of their assets which can include property, bank accounts, stocks, foreign investments, or any other types of investments.
- A Will includes the names of beneficiaries, i.e. the people who will receive portions from the deceased’s estate. In addition to their names, full details need to be included such as their first and last names, and address.
- A testator nominates an executor who is responsible for administering the estate of the deceased. The Will contains information and full details about the executor, such as first and last names, address and contact information about the executor. Some testators may opt to nominate two executors in their Will.
- Testators can also detail their funeral wishes (if any) in the Will. All intentions around how the funeral should be carried out need to be clearly stated so the executor can arrange the funeral based on the wishes of the deceased.
Other Important Considerations
An important consideration when discussing how to make a Will in Australia is to assess the methods through which you can make a Will. Broadly, there are two ways through which a person can draft a Will.
- Firstly, people may opt to prepare a Will by using do-it-yourself (DIY) Will kits, which include online templates.
DIY kits might be useful for simple estate planning purposes. However, it is important to be cautious when using DIY kits. This is because it is easy to make mistakes when using such kits, which will ultimately lead to the Will being legally invalid.
- Secondly, and importantly, taking the help of Wills and estate planning solicitors to prepare the Wills is the more common choice among people. This is because solicitors know how to ensure that a Will fulfils all requirements to be considered legally valid.
Moreover, because complex estates will involve detailed planning, it is important to have professional guidance so as to avoid any disputes or conflicts in the future.
FAQs On Making A Will
Q1 – Is it necessary to make a Will? What happens if someone dies without making a Will?
It is extremely important to make a Will. Generally, when a person dies without a Will, also known as dying intestate, their assets will be divided among the surviving spouse and children.
However, this can lead to disputes among other family members. Moreover, this would mean that the estate is not divided according to the intentions of the deceased. Therefore, it is important to clearly state intentions around how assets are to be divided.
Q2 – Is it okay to make my Will myself?
While it is okay to do so, it is not recommended. When making your own Wills, there is a high chance of slip-ups that can occur, which in turn lead to the Will becoming invalid.
This will then lead to more expenses as you have to start the process of preparing a Will all over again. This is why it is best to leave it up to legal professionals who have the experience of dealing with all different types of estate planning.
Obtain Legal Advice From Leading Estate Planning Solicitors
Estate planning may seem like a daunting task. However, with the right guidance, this is a straightforward process. At JB Solicitors, our Wills and estate planning team will assist you in every step. This includes from the very first step of gathering all information, to the final step of executing the Will.
At JBS, we value transparency and therefore offer fixed-fee pricing structures for estate planning. If you have more questions on how to make a Will in Australia, please do not hesitate to contact our friendly team of lawyers.
Contact JB Solicitors today.
