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What is a will and why do I need one?

What is a will and why do I need one?

A ‘Will’ is a document setting out your wishes as to how you would like your assets and belongings (called your ‘estate’) to be dealt with after you die.

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 allowed for adequately in a Will.

A Will can be disputed or challenged in several ways, to find out more information about this, see our article, Disputing a Will.

If someone dies without a Will, their estate is distributed according to the ‘rules of intestacy’. The rules of intestacy provide a specific hierarchy of people to receive your assets and are applied strictly to every person, no matter what their personal circumstances are. In many cases, the rules of intestacy unfortunately do not give effect to a person’s wishes.

For example: If a person has passed away and is survived by a legal spouse – this includes a husband or wife that they have separated from but not legally divorced, and has no children, the surviving spouse will receive the entire estate.

Another example is if a young adult who would have no spouse or children passed away, their parents are entitled to half of the estate each, even if the young adult did not have a relationship with his or her parents.

The rules of intestacy also apply to any assets that are not properly dealt with by your Will – in that case you have a ‘partial intestacy’.

It is very important that you make a Will and have a proper estate plan to deal with any assets that your Will cannot deal with, otherwise the rules of intestacy will apply and the results may not be how you wished.

For more information or advice about making a Will, contact our friendly estate planning team today.

This publication is for information only and is not legal advice. You should obtain advice that is specific to your circumstances and not rely on this publication as legal advice. If there are any issues you would like us to advise you on arising from this publication, please let us know.

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