When you die without a will in South Australia, you are said to die intestate, and your estate will be distributed according to the Succession Act 2023. These laws will not consider your wishes, and your loved ones (who may not be your “family”) will have a tough time grieving your loss while navigating uncertainty and conflict which may arise over your estate.
Here’s the bottom line: Every adult needs a will, and you’ll soon see why that is. Contact us today at FJS Lawyers for a will that clearly outlines your wishes and fits your circumstances.
What Is a Will?
When you make a will, you’re making a legal document that outlines how your assets are distributed in the event of your death. The law grants everyone the freedom to include every wish they deem necessary in their will, provided it satisfies the requirements.
Every will is as unique as the person making the will, but a will generally includes:
- Beneficiary – Who gets your assets such as real estate, money, jewellery and other property, including digital assets.
- Executor – Who should administer your estate.
- Guardian – Who you prefer to be guardian of your children (under 18).
Your will can also contain other details like carers for your pets, charitable donations, and how you’d like your body handled (e.g. if you wish to be buried or cremated). Appointing an executor is a key part of will-making because this person (or these persons) will settle debts and pay taxes before sharing the estate as outlined in the will. It is common practice to appoint an executor who is also a beneficiary. Most people appoint trusted loved ones as executors, or some choose to appoint a solicitor as executor of their estate.
Children under 18 can be beneficiaries in your will, but they cannot legally receive their share of the estate until they’re 18 years old or at the age you specify. The executor will need to hold their share in trust until the beneficiary has attained the relevant age and then their share is distributed to them.
Why Do Adults Delay Having Wills?- Common Misconceptions
There are often many myths and misconceptions surrounding a person’s decision not to have a will. We will debunk some of the common ones in this section.
“I’m Too Young”
It’s difficult to plan for one’s demise when one’s adult life is just starting, and this thinking underlies the inaction regarding wills for many young adults. Unfortunately, death and tragedy can happen at any age and having a will is never a wrong decision.
“I’m Not Wealthy Enough”
Wills are not just for the older, wealthier population. Even if you only have some personal belongings and money in your bank account, you should consider your circumstances and where your assets would go if you die without a will (“intestate”).
“My Loved Ones Will Know How To Divide My Assets”
If you don’t have a will when you die, this is known as dying intestate. Your loved ones (who may not be your “family”) will have no say on how your estate is divided, even if they know what you wanted. The only way to give loved ones the power to honour your wishes is to have a will.
“Making a Will Is Complicated”
When you consult with FJS lawyers, making a will is not complicated. Dying without a valid will is often complicated, stressful and costly for your loved ones.
Benefits of Having a Will
The single most important benefit of having a will is to ensure that your assets get distributed exactly how you want after your death. Without a will, your assets are distributed to your family according to intestacy laws and this will not include your close friends and charities you would have wanted to inherit your estate.
When you have a will, you spare your loved ones from the legal, financial and emotional burden of dealing with your estate after your death. Dying intestate can lead to conflict among your loved ones and family.
Having a valid will allows you to make donations to charities, organisations and causes that you hold dear, so that you can create a lasting legacy in your name.
Having a will prepared and stored by FJS Lawyers will assist with the probate process (legal process of obtaining permission to administer the estate), allowing your loved ones to mourn your passing without the added stress of difficulties obtaining probate.
What Are the Legal Requirements for Making a Will in Australia
To make a will in Australia, you must:
- Be at least 18 years of age. However, a person under 18 may make a will if they are or have been married.
- Have legal capacity, i.e., the capacity to understand what a will is, what it means to make one, and effectively communicate their wishes.
Furthermore, a valid will must have these criteria:
- Must be in writing (not spoken)
- Must be signed by you and witnessed by two adults (ideally two adults who are not named in your will, to avoid suggestions of a conflict of interest)
- Must name beneficiaries who will inherit your property
- Should name an executor – a representative who will carry out your wishes.
You should regularly update your will after significant life changes. It is important to seek legal advice when updating your will – you may invalidate your will by making alterations yourself.
At FJS Lawyers we are here to advise you and assist you to update your will.
Every adult should have a will that is legally binding, addresses their complex circumstances and clearly outlines their wishes for asset distribution. If you don’t have a will, you can start the process now with the help of the professional and friendly team at FJS Lawyers.