Do I really need a Will and last testament?

Key points:

• Over half of all Australians over the age of 18 don’t have a valid Will
• A Will is one of the most important parts of your estate planning and allows you to distribute your wealth according to your wishes
• Not having a Will could leave distribution decisions up to the courts in your State or Territory

Creating a Will can be a difficult process – it brings up conversations around death, funerals, and may even cause family disputes – but a Will is one of the most important documents you should have in place because it lets you decide how you wish for your personal effects to be divided.

You will be able to leave certain assets to people and also divide, or donate, your monetary assets between family and friends.

Additionally, if you don’t have a legal Will your State or Territory will determine how your estate will be distributed.

Why are legal Wills important?

Over half of all Australians do not have a valid Will in place, which means their assets will not be distributed according to their wishes.

No matter if you have friends or family that know your wishes through conversations with you, it doesn’t necessarily mean they will follow your directions or receive the rights to distribute your estate how you wish.

Your Will is a part of your estate planning and should be an important addition to your estate plan.

It is also an opportunity to maintain control over your estate and all of its assets after you pass.

If you have a Will already, it’s important to update it every five years or after an out-of-the-ordinary event, like the loss of wealth or recent family changes.

The validity of your Will

Making your Will does require a little work to be valid.

For instance, your Will needs to be written – it can be handwritten, typed or printed – and must be signed by two witnesses – who are not beneficiaries of the Will – and signed by the person making the Will.

Testamentary (mental) capacity also comes into play when making a Will, which means you must have the ability to understand you are making the Will and the legal effect it holds, know the extent of your assets, and who would benefit from your estate. This means you have no mental illness or disease that could have an effect on your ability to make decisions.

While you can use a do-it-yourself (DIY) Will Kit, however, there is always the danger of a Court deciding it is not legally valid.

If you do not have the qualifications or knowledge behind making a Will, you are more likely to make a mistake on a DIY Will Kit. This could result in an area not being covered or leaving things open for interpretation.

What if I don't have a Will?

If you don’t have a valid Will or die without a Will, your State/Territory will believe you have died ‘intestate’, which means you have not elected any beneficiaries of your estate or executors to administer your Will.

Your whole estate and assets would be distributed by your State/Territory legislation requirements. This usually is organised through a predetermined formula that differs from State to Territory.

If you wished to have certain assets or percentages of your wealth divided to certain people, these wishes may not be upheld.

In some cases, your closest known relative may be provided with administrator rights to distribute your estate, or if there is no close next of kin, the State/Territory may be required to bequeath the estate assets to the State/Territory.

Lastly, if you don’t have a Will, this could leave a tremendous financial and emotional burden on family, and could even lead to in-fighting among family members. Having clear directions setting out how your estate and assets should be distributed can reduce the likelihood of this tension developing.

Will legalities between States and Territories

Each State and Territory has different rules on Wills, so it is important to do your research into making a Will depending on your location.

Australian Capital Territory

The executor of the estate must receive a Grant of Probate from the Supreme Court of the ACT before receiving authority for access to the estate to collect monies, pay debts, lodge income tax returns, and other requirements of an executor.

In some cases, you may not need to apply for a Probate depending on the size or nature of the person’s estate.

If there is no Will left, next of kin can request administrator rights through the court. However, if there are no identifiable heirs found, as remote as cousins, the assets will be bequeathed to the ACT Government as unclaimed.

Similar to other States and Territories, a marriage or divorce will automatically revoke the Will. However, separation from a partner does not revoke a Will.

To contact the ACT Trustee and Guardian, head to their website.

New South Wales

Your executor will need to apply for a Grant of Probate through the NSW Supreme Court before getting access to the estate. Fees for a Probate can vary depending on how big the estate assets are. If there is no valid Will, family can apply to be administrator of the estate.

Dying Intestate rules in NSW involve your assets being distributed according to a predetermined formula. Certain family members will receive a defined percentage of assets.

If you die leaving behind a spouse and no child or grandchildren (issue), that spouse will receive the whole estate.

However, if there are children from another relationship other than the current spouse, the estate will be divided between the spouse and any ‘issue’.

In NSW, if you get married your Will is automatically revoked. Whereas a divorce won’t revoke your Will, only certain parts of it.

For more information, contact the NSW Trustee & Guardian through their website.

Northern Territory

In the Northern Territory, the executor of the Will must apply for a Grant of Representation through the Supreme Court of the Northern Territory for permission to take control of the estate – this covers if a Will exists (Probate), when a Will doesn’t exist (Administration), or if the executor declines to administer the estate.

If there is no Will, the closest next of kin or relative can take the role as Administrator of the estate, however, they need to apply to the Supreme Court to receive control of the estate.

Your assets will be divided up according to a set formula under the Northern Territory law.

In NT, if you get married or divorced, your Will is automatically revoked.

To find out more information, visit the NT Public Trustee Website.

Queensland

Your executor of the Will needs to obtain a Grant of Probate from the Supreme Court of Queensland to get control of your estate.

In Queensland, the administrator of an estate needs to receive a Letters of Administration from the Supreme Court of Queensland to deal with an estate of a person without a valid Will.

If you die without a Will, it will fall under the ‘intestate’ ruling and your assets will be passed to the next of kin, either your spouse or de facto partner, or children and grandchildren.
If there is no next of kin, it will be issued through your family, to your parents, brother and sisters, nephews and nieces, then grandparents, and then uncles, aunts and cousins.

Your estate will not be distributed to relatives past your first cousins, and in-laws or step-parents are not considered next of kin.

Your marriage will automatically revoke your Will unless marriage was contemplated previously in your Will. Your Will is also revoked once a divorce becomes finalised.

Head to the QLD Public Trustee website for more information.

South Australia

In South Australia, an executor of an estate will need to receive a Grant of Probate from the Supreme Court to administer the estate and handle the disposal of any assets.

If you die without a valid Will, or your Will is invalid, your estate will be treated as dying intestate and your assets will be distributed among your surviving relatives. Your living family can decide who they want to administer the estate, but it must be within the limits of the law.

Alternatively, if there are no found beneficiaries of the estate, the assets may pass on to the State.

In South Australia, if you get married your Will is automatically revoked, unless the Will was made with marriage in mind. On the other hand, getting a divorce does not revoke your Will, but it does revoke any rights or distributions to your former spouse.

Head to the Public Trustee Office website for more information.

Tasmania

Your executor will need to undertake a Grant of Probate from the Probate Division of the Supreme Court in Tasmania to get approval to access your estate. However, if the size of your estate is not large, less than $50,000, you may not need to apply for Probate.

If there is no Will, the Tasmanian intestacy formula applies, and somebody needs to apply to the Tasmania Court for authority to become the administrator of the estate.

The Tasmanian laws require the administrator to distribute the assets in the estate giving priority to the spouse, followed by the children, and then other blood relatives of the person who has died. If there are no family members, the Government will receive the estate.

Separation from a partner does not have an effect on a Will but a marriage or divorce does revoke an existing Will or certain parts of your Will.

If you have a separated partner or de facto partner when you die, each spouse will receive a share of the estate.

For more information, visit the Public Trustee website.

Victoria

The executor of your estate, or the administrator if you don’t leave a Will, needs to apply for a Grant of Representation to the Supreme Court of Victoria. This Grant of Representation covers the different applications for Probate or Administration.

The intestate rule applies in Victoria and assets can be distributed in a way that might not be in line with your wishes if you die without a Will in place.

If you leave behind a partner without a valid Will, they should inherit the full estate. Potentially any children you have may receive a sum depending on what assets are left in your estate.

If you didn’t have a partner but do have children, your invalid Will should be equally distributed between your children.

However, if you have no children or partner, then your estate will be distributed among relatives in a very specific order – parents, siblings, grandparents, aunts and uncles, and then cousins. Your estate shouldn’t pass to the State Government unless you have no family.

In Victoria, getting married will revoke your Will and if you get divorced your spouse is treated as if they died before you. However, Victoria Legal Aid recommends updating your Will after a divorce. Additionally, a separation from a spouse doesn’t affect your Will.

To contact the Victorian State Trustee or find out more information, visit their website.

Western Australia

In WA, you can expect your executor to apply for a Grant of Probate to get access to your estate or a family member can make a claim to be an administrator of your estate if you don’t leave a valid Will by applying for a Letters of Administration with the Supreme Court of WA.

With no valid Will, your estate would be distributed under the direction of the current WA legislation, which can be complicated and will differ depending on the type of assets within the estate as well as how many family members you have.

If your estate isn’t more than $50,000 and you don’t leave a valid Will, your spouse will receive the entirety of your estate. Keep in mind, the laws in WA are very specific around intestate percentages for family and will differ depending on your estate situation.

In Western Australia, if you have a Will made after the 9th of February 2008, the document would be revoked after a divorce. In that case, a new Will would need to be made.

If your Will was created prior to 2008, then it will not be revoked from a divorce. You should update your Will anyway if you haven’t had it updated since 2008.

Additionally, your Will will be revoked in WA if you marry, unless there was a clause put into your Will that included marriage.

To find out more information, visit the website of the Public Trustee website.

Do you have any unusual requests you are intending to include in your will? Tell us in the comments below.

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