When a person dies certain tasks must be attended to for example:

• if the deceased had dependants then arrangements must be made for their welfare at least in the short term;
• funeral arrangements must be made; and
• the deceased’s property must be gathered in and any outstanding debts paid.

A person’s estate consists of the property (assets) they owned at the date of their death less any debts they owed. The estate assets may be real property or in the form of money owed to the estate. The term real property refers to land, buildings and personalty (personal property) such as:

• motor vehicles;
• furniture; and
• personal effects such as clothing and jewellery.

The final task is to distribute the estate to the people that the deceased nominated as beneficiaries (the people who inherit gifts from the deceased). This may be done in the form of cash, a percentage of the total estate or other specific gifts from the estate such as:

• your Rolex watch;
• your antique chairs; or
• your unit on the Gold Coast.

A will is a legal document in which a person nominates:

• a legal personal representative to act on their behalf after their death; and
• the people to whom their property is to be given.

The person making the will is described as the testator. The person nominated to organise your estate after your death is called the executor. Other instructions that may be included in a will may be:

• guardianship details for dependent children;
• creation of trusts and life tenancies;
• appointment of trustees for trusts; and
• any other matter that is important to you.

An executor is usually chosen from the testator’s family or group of friends but any person who is over 18 years old, trustworthy and dependable may be nominated to be an executor. Some testators decide to appoint an organisation to act as their executor such as a private trustee company or the public trustee in their state or territory.

It is no exaggeration to say that a will is one of the most important documents that a person ever creates and yet it has been estimated that up to half the population does not have a valid will or any will at all. This begs the question why anyone would not want to have a say about who should have responsibility for any dependent children or where their hard-earned property goes after their death.

The reasons people do not make a will are many and varied. Some people do not understand the importance of a will or do not know what a will is. Others believe they have plenty of time to get their affairs in order and die before they have the opportunity to make one. For others the thought of writing a will makes them feel uncomfortable and superstitious. The reality is that death comes to all of us eventually.

A will may be as general or specific as you wish. For instance you may wish to leave specific instructions about the disposal of your body. These instructions may include your preferred location of disposal and the method of disposal for example:

• burial;
• cremation; or
• donation to scientific research.

Alternatively many people leave the decision about disposal of their body to their executor. The will may include specific gifts to individuals or simply leave the residual estate (the amount remaining after debts and funeral expenses have been paid) in equal shares to their beneficiaries.

This Legal Guide on Wills and Succession provides private individuals with information about making a will and implications of dying without a valid will. Before making important decisions it is advisable to obtain legal advice specific to your situation. LegalEagle’s™ free directory profiles all lawyers in Australia. You can use it to Find a Lawyer near you.

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Warning: Information provided through LegalEagle™ is for general guidance. It is not legal advice. Laws and procedures referred to may change and differ between states, territories and nationally. There may also be important exceptions or qualifications. Only a lawyer providing formal legal advice can assess your particular circumstances to determine how the law will apply.