Wills - FJS Lawyers Salisbury & Adelaide

You can make a Will if you are at least 18 years old and you have legal (mental) capacity.

Making a Will allows you to set out your directions for the distribution of your estate when you die and appoint at least one person to be your executor. You may also specify your funeral wishes in your Will and specify if you wish to be buried or cremated. You can record your wishes for the guardian of your minor children and the person who will care for your pets.

Without a valid Will, the distribution of your estate is construed by the law of intestacy, as set out in the Succession Act 2023 (section 109). This method of distribution can result in your estate being inherited by someone quite unintended – perhaps someone from which you have been estranged for many years and someone you would never have chosen.

If you have never had a Will and feel overwhelmed about the process – Contact FJS Lawyers! When leaving our office, clients usually say “That was so much easier than we expected!”

At FJS Lawyers we offer a same-day service for Simple Will preparation and we can store your Will and place it on the Law Society Will Register for your peace of mind.

For further information – see the Legal Services Commission of South Australia Law Handbook Online in the Wills section.

What is a will?

A will is a legal document which:

states who will receive your property when you die; appoints the person(s) you want to be your executor(s); appoints the person(s) you want to be the guardian of minor children; sets out your wishes for disposal of your body.

Where should I store my Will?

Your will should be stored in a safe place and you should ensure that your executor knows where to find it. If your will cannot be found, this will cause problems and may prevent your wishes from being known. You should never remove the staple from your original will or attach anything to it.

Who can I leave my assets to?

You can choose to leave your assets to whoever you like, but the law requires you to provide adequately for your spouse, defacto spouse, children, and any other relevant dependants. If you do not do so, any eligible person may bring a claim against your estate.

Can I change my will?

You can change your will at any time. You should change your will when your circumstances change – e.g. if you divorce or remarry, if one of your beneficiaries dies, if you have children or if your executor dies. It is usually safest to make a whole new will to ensure that your will remains valid – you cannot simply cross out something and write something different.

What happens if I marry or divorce?

Marriage will generally invalidate any will you have previously made. There are some exceptions your solicitor can advise you about. If you divorce, any gifts made under your will to your former spouse are cancelled, again there are some exceptions your solicitor can advise you about.

You should always make a new will if you marry, divorce, separate from your spouse or start a new defacto relationship.

What if I die without a will?

If you die without a will (i.e. you “die intestate”) your property and possessions will be distributed in accordance with a standard formula pursuant to the Administration and Probate Act 1919 (SA).

Generally, this will result in your assets passing to your spouse and/or children. This can be a problem, however, if you have a legal spouse and a defacto spouse i.e. you are separated (but not divorced) and you have a new defacto partner.

Problems may also arise in some estates where there is a spouse and children. For example, in estates valued over $100,000 – the spouse is entitled to the first $100,000, half of the balance of the estate, and the personal belongings of the deceased. This could result in a spouse being unable to remain in the family home, causing further hardship and emotional strain during an already harrowing time following your death.

How can a solicitor help me?

It is a good idea to involve your solicitor whenever you want to make changes to your will or make a new will. Your solicitor can:

Make sure your will is valid and properly drafted, signed and witnessed. Make sure you’ve expressed your wishes in the best possible way. Advise you on your rights and obligations to your spouse or defacto partner, children and other dependents. Advise you on the role of your executor and help you choose the best person. Advise you regarding superannuation after death. Advise you on making an Enduring Power of Attorney. Advise you on making an Advance Care Directive.

Estate Planning – Wills

Frequently asked questions about wills

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