A Will is a legal document that outlines how you want your money, property, and personal belongings (known as your “estate”) to be distributed after you pass away. It allows you to specify who should receive your assets, who will manage your estate, and even who will take care of your children if they are underage.
In Australia, people have complete rights to ‘testamentary disposition’. This means that you can leave your estate to whomever you like. Most people choose to leave their assets to close family and friends, but this doesn’t mean you necessarily have to include these people in your Will. However, some people do have a right to contest a Will if they feel they have been unfairly left out or not accounted for adequately in a Will.
Why Is Having a Will Important?
Having a comprehensive Will and estate plan ensures that your wishes are followed and that your loved ones are taken care of according to your preferences. Without one, the distribution of your estate may not align with your intentions. A well-prepared Will can:
- Prevent family disputes over inheritance
- Ensure financial security for your dependents
- Minimise delays in distributing your assets
- Allow you to appoint a trusted person (executor) to manage your estate
- Help with tax planning and reducing unnecessary costs
If your Will is unclear or outdated, legal issues may arise, making it difficult for your beneficiaries to claim what you intended for them.
What Happens If You Don’t Have a Will?
If a person passes away without a Will, the estate is distributed according to the “rules of intestacy.” These are strict legal guidelines that determine who inherits your assets, regardless of your personal relationships or wishes.
Some examples of how intestacy laws work include:
- If you are married (even if separated but not divorced) and have no children, your spouse receives everything.
- If you are a young adult without a spouse or children, your parents inherit your estate, even if you were estranged from them.
- If there are no immediate family members, distant relatives may inherit your assets, or in some cases, the state may claim them.
These rules do not take into account personal circumstances, which can lead to unintended and unfair outcomes. If your Will does not cover all your assets, those unallocated parts of your estate will also be distributed according to intestacy laws, which is known as “partial intestacy.”
How to Make a Will
While each situation is unique, below are the key steps of making a Will:
- List Your Assets – Identify everything you own, including property, savings, investments, and personal belongings.
- Decide on Beneficiaries – Choose who will inherit your assets and in what proportions.
- Appoint an Executor – Select a trusted person to manage your estate and ensure your wishes are carried out.
- Consider Guardianship – If you have minor children, designate a guardian to care for them.
- Get Legal Advice – Speak to an experienced estate planning lawyer to ensure your Will is legally valid and properly drafted.
- Sign and Witness – In QLD, for your Will to be legally binding, it must be written, signed, and dated in the presence of two witnesses over 18 years of age.
- Store It Safely – Keep your Will in a secure place and inform your executor where to find it.
- Regularly review your Will – especially after major life changes such as marriage, divorce, or the birth of a child to ensure it remains legally binding and up to date.
Need Help With Your Will?
If you need assistance in creating or updating your Will, our friendly estate planning team is here to help. Contact us today for a free, no-obligation consultation.
This article is for informational purposes only and should not be considered legal advice. Please seek professional guidance for your specific circumstances.
