Frequently Asked Questions
You need to check the relevant legislation in your State and Territory, as the rules are different in each jurisdiction.
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Can anyone make a will?
- Yes anyone can make a will but the following applies:
- they must have legal capacity and good memory and understanding; and
- they must be over 18 years old.
- Good memory and understanding means among other things that they must not suffering from dementia or a cognitive impairment that affects their judgement and understanding.
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What is a trust and how does it differ from a testamentary trust?
- A trust could be described as an obligation to another person or people. It is created by a trust deed during a person’s lifetime. It usually involves assets being set aside for the benefit of others.
- A trust consists of at least one trustee and at least one beneficiary (a person who receives a benefit from the trust).
- The trustee is the legal owner of the trust’s property and they are legally obliged to hold the property for the benefit of all beneficiaries according to the terms of the trust deed.
- On the other hand a testamentary trust is created by a will and does not come into effect until the date of death. A testamentary trust is typically set up for the benefit of minor or disabled children of the testator or a surviving spouse.
- You can use our free and anonymous Ask a Lawyer service if you have a particular issue you want to know more about.
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Once I have made my will how often does it need to be updated?
- The general rule of thumb is that a will should be reviewed every five years and if necessary it should be updated.
- However if a life changing event occurs in the testator’s life the will should be updated accordingly. Life changing events include:
- a beneficiary or executor dying;
- a new beneficiary being born for example a child or grandchild;
- a specific gift is sold; or
- the testator marries.
- Importantly a binding death nomination for a superannuation fund or life insurance policy expires every three years. A new binding death nomination will need to be made at that time. This time may be used as a prompt to check the currency of a will as well.
- You could use our Fixed Fee Quote service to call for tenders from lawyers to help you draft your will and take care of your testamentary needs.
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What is an intestate?
- An intestate is a person who dies without a valid will. Their estate will be administered according to the laws of intestacy which is the legislation that dictates who will inherit their estate.
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Can my witness also be a beneficiary under my will?
- No. A person who is a beneficiary under a will who also witnesses the will is known as an ‘interested witness.’
- If a beneficiary witnesses a will they will forfeit their gift under the will.
- Even if a spouse of a beneficiary under the will witnesses the will the beneficiary will forfeit their gift.
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Can my executor be a beneficiary under my will?
- Yes. It is common for a surviving spouse to be nominated both an executor and the sole beneficiary under a will.
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Can I leave my half of a jointly owned property to my children from my first marriage?
- If a property is owned as a joint tenancy with a new spouse when the testator dies their interest in the property evaporates at the moment of their death. The surviving joint tenant then becomes the sole legal owner of the property.
- This type of interest in a property cannot be left to a beneficiary in a will because the asset does not belong to the testator anymore and does not form part of their estate.
- By contrast a property owned as a tenancy in common with a new spouse is treated differently. The portion of the property owned by the testator does not evaporate at death. It can be left in their will to a beneficiary such as a child from a previous relationship.
- You can use our Phone a Lawyer service for a preliminary legal consultation if you think you may need legal advice.
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What happens to my will when I get married?
- Marriage automatically revokes an existing will unless the will contains a clause that contemplates the marriage.
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What happens to my will when I get divorced?
- Unless the will states otherwise a grant of divorce revokes any parts of the will that favour a person’s former spouse. There are some minor exceptions to these rules but generally the parts of a will that will be revoked include:
- gifts to the spouse; and
- appointment as:
- trustee;
- guardian; or
- executor.
- Any gift to the spouse will be treated as though the spouse predeceased the testator.
- Importantly mere separation from a person’s spouse will not affect the validity of a will.
- If you separate from your spouse and do not want them to inherit anything from you a new will should be made as soon as possible.
- If you obtain a divorce it is good practice to update your will so that it is clear who you want the parts of your estate that would previously have gone to your ex-spouse to go to.
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What happens if my will cannot be found after I die?
- A search will be made for your will. This will involve an initial physical search of your home and papers.
- After that any known dealings with solicitors will be investigated by relying on your family’s recollections. The public trustee of your state or territory will be checked.
- Some states and territories offer advertising facilities for lost wills. These may be relied on in addition to advertising in local and national newspapers.
- If your original will is lost but your witnesses can provide evidence that they saw you sign the will on a particular day a copy of the will may be submitted to the court as an informal will in some states and territories.
- It is not good practice to rely on an informal will as the court may still reject it.
- A lawyer can assist you by placing your original will in their strongroom for safekeeping.
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Should I give anyone a copy of my signed will?
- Your will is your business and you are not required to give anyone a copy.
- However there are benefits to giving someone a copy especially if you have funeral and body disposal instructions in the will.
- Often a person’s will is not read until after their funeral so if the will contains specific instructions about the type of funeral or method of disposal for your body then it may be too late by the time the instructions come to light.
- Also by giving your executor a copy of the will they are aware of your wishes in advance and can judge whether they are willing or able to be your executor. For example they may suffer from ill health or live some distance from you and know that they will not be able to perform their executorial duties.
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Who should I choose to be my executor?
- An executor’s role is very important. You must choose someone you trust and who you believe is responsible and will act in accordance with your instructions.
- Ideally the person should be about your age or younger so there is more likelihood that they will still be alive when you die.
- Preferably two executors should be chosen with either executor being able to act on their own if the other is unwilling or unable to act as your executor.
- It is also a good idea to have at least one back-up executor in the event that your chosen executor or executors cannot act.
- Nominating the public trustee in your state or territory is also a good safety net.
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