What should I know before I make a will?

Can I make a will?

You must be aged 18 or over to make a will. In some States the law allows under 18s to make a will, for example, if they are married or if a court authorises this.

You must also have "testamentary capacity". This means that you:

· know what assets you have, and how much they are worth. You don't have to know their exact value, just enough to be able to decide who should receive them;

· are able to decide who would fairly receive your assets; and

· understand that your husband/wife and children might need to take priority over other people you may want to leave your assets to.

If there is a question about a person's mental capacity, make sure you talk to a lawyer. You can ask a doctor, with relevant experience, to make an assessment of competence and keep this assessment with the will.

What to include?

You can include in a will:

· assets, such as houses, cars, money, shares, cash etc;

· rights and powers, such as a right to appoint a trustee of a family trust; and

· specific belongings, such as a violin, painting, books, photos. Be sure if you list specific items that they are easily identified.

Some assets, such as superannuation and life insurance, may not be distributed in a will. For example, a superannuation benefit may go directly to the person nominated to the superannuation fund. If you have a superannuation entitlement, make sure you get in touch with the fund to nominate the people that you want to benefit.

However, some more sophisticated wills can take account of superannuation death benefit distributions through an “equalisation clause”, if you want to ensure a class of beneficaries are treated equally (e.g. your children).

What about my house?

This depends. If the house is registered in only your name, you can put it in the will.

If you own it with another person, such as your husband/wife, there are two ways you can legally own it:

· jointly - this is the most common way of owning property and you would be a "joint proprietor" with the other person; or

· as "tenants in common". This doesn't mean that you are tenants; it means that you each own a certain percentage of the property (usually 50%) and you can deal with your percentage however you want to.

If you own your home as a joint proprietor, then, when you die, the home automatically passes to your other joint proprietor. It makes no difference whether you have a will or not. But if you own your home as tenants in common, you can leave your percentage of your house to whoever you want in your will.

If you own your home as a joint proprietor, but would like to leave your share of the property in your will, you will need to have the title changed – this is usually not very expensive. Get in touch with the Titles Office in your State.

Who can I leave assets to?

You can leave your assets to whoever you want, including charities and not-for-profit organisations.

This is a very important decision, and you should think about it carefully.

It is important to leave enough assets to the people who depend on you so they can survive after you are gone. If you don't, they may be able to take legal action to get a bigger share of your assets after you are dead. This is not uncommon, so it is worth taking it seriously.

If you leave assets to a person under 18, those assets must be held in trust until they turn 18.

What about debts?

Unfortunately for those who survive you, any debts that you have while you are alive remain as debts.

Anyone who can prove you owed them money can make a claim from the assets you leave in your will. This will happen even if you don't mention the debt in your will.

If you have debts, it's a good idea to say that you want them paid out of your estate before your assets are distributed. Otherwise a person who inherits an asset with a debt, for example, property with a mortgage, may not be getting the amount that you intended.

Who's who?

Beneficiary
A person who receives something from an estate.
Executor
The person (male or female) who is responsible for administering a will.
Guardian
The person that you would like to look after your children who are under 18.
Testator
The person who makes the will. This person is sometimes called the "will-maker".
Trustee
A person who administers a trust established under a will, e.g. a trust for children.

Choosing an executor

An executor is the person who is responsible for carrying out the instructions in your will. One of their tasks is to manage the distribution of your assets after you die.

This is a very important job. Possible tasks include:

· responsibility for your burial/cremation;

· obtaining probate (this is the legal process required before most major assets can be distributed. Probate may not be required if the estate is small);

· collecting any debts or investment income;

· claiming life insurance;

· protecting and insuring any assets of the estate;

· selling assets, if required;

· distributing the remainder on the estate etc.

There is no rule about who is the best person to be executor. It can be your husband/wife, or children, or any other person who can be trusted to manage the distribution of your assets. It can also be a beneficiary.

Things you should consider include:

· are they likely to outlive you?

· will they have time to do what is needed?

· will they be impartial if there is a dispute?

· do they have some understanding of your assets?

· will they be prepared to deal with your assets confidently, and in the way that you want? and

· do you trust them?

Make sure that the person you name as executor is happy to take this job. You should also consider having an alternate executor, in case the first executor is not available or decides they don't want to be the executor. It's also possible to appoint two people to act as joint executors. Talk to your solicitor about these options and the pros and cons of each.

If you don't know anyone, or you want someone independent to handle this task, you can appoint a solicitor, accountant or a person from a trustee company.

LAW FOR YOU

Read this: This fact sheet is intended to be general information about the law in Australia. It is not a substitute for legal or other professional advice. Lawscape Communications Pty Ltd, Fairfax Interactive Pty Ltd or MoneyManager does not accept responsibility for loss to any person, who either acts or does not act because of this fact sheet.

Last Updated – March 2007

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