A valid will must include an executor and a beneficiary.
Our job at FJS Lawyers is to guide you through the will-making process, and you’ll find this blog a valuable resource in that regard.
Understanding the Legal Requirements for Creating a Legal Will in Australia
Before you create a will in Australia, the laws require you to be at least 18 years of age and have legal capacity (you know what a will means and what it does, and you can provide your instructions). You can make a will if you are under 18 and married (or have been married).
For a will to be valid, it must:
- Be in writing – handwritten or typed – no other form (e.g. audio or video) is acceptable.
- Be signed by the testator (person making the will) in the presence of two witnesses who are over 18 years and who are not beneficiaries.
- Include an executor who will carry out the wishes within the will.
- Must name a beneficiary who will inherit the estate.
Choosing the Right Person to Be Your Executor
Choosing an executor is an important decision, as this person will carry out your wishes in accordance with your will. You can choose any adult with legal capacity – a friend, relative or professional. An executor may also be a beneficiary.
You can choose more than one executor, and you should appoint a substitute (alternate) executor in the event that the primary executor is unable or unwilling to perform the role.
What factors should you consider before appointing an executor?
Trust – you should appoint an executor that you trust to carry out your wishes.
Practicality – your executor should have the capacity to manage the legal and financial aspects of the estate administration and be likely to survive your death.
Willingness – you should speak to the person before appointing them as executor.
Compensation – you should consider whether to include a payment to the executor in your will, especially if the person is not a beneficiary.
Executors can (and usually do) seek legal advice and assistance with administering the estate and obtaining probate. Legal fees are paid by the estate.
You should tell your executor where your original will is stored.
If you do not have a friend or relative to appoint as executor, you may consider appointing a solicitor or other professional who provides this service.
Who Will You Appoint as Your Beneficiaries?
You can name any beneficiary in your will, including your spouse or domestic partner, children, other relatives, friends, charities, and/or other organisations. It is important to clearly identify each beneficiary and to consider making provision for alternate scenarios and/or beneficiaries in the event that a beneficiary dies before you.
What Are Your Estate Assets?
Your estate assets include everything you own, such as:
- Real estate (lands, buildings) owned in your sole name or as tenants in common.
- Cash in your possession.
- Bank accounts in your sole name.
- Cars, motorcycles, boats, caravans, etc.
- Personal possessions including clothing, jewellery, artwork, furniture.
- Digital assets – cryptocurrencies, social media accounts, digital files, etc.
- Intellectual property.
- Investments like shares, bonds, and managed funds.
Superannuation is not usually paid into your estate, but this depends upon the circumstances and may be decided by the trustee of the superannuation fund.
Joint real property owned as joint tenants passes directly to the surviving owner and does not form part of your estate.
How Will Your Assets Be Distributed?
Your assets will be distributed as stipulated in your will. Your executor will distribute your assets after paying your debts, funeral and testamentary expenses, and taxes.
Do You Want to Leave Any Specific Gifts or Donations?
When making your will, you should discuss any specific gifts or charitable donations with your lawyer, so that these are properly included in your will (e.g. you may wish to leave jewellery to your daughter or granddaughter or $1,000 to each grandchild.
What if a Beneficiary is a Child?
Children can inherit your estate when they attain the age you specify in your will. Until then, the executor is responsible for holding the estate on trust for the beneficiary.
Do you Want to Appoint a Guardian for your Children?
You can appoint a guardian for minor children in your will; however, it is important to have advice from your lawyer about how family law may impact upon these wishes.
Do You Have Any Specific Funeral Requirements?
You can include specific directions regarding your funeral in your will, including whether you wish to be buried or cremated.