What is a Will?
A will is a legal document that sets out how you want your assets distributed after your death. In Australia, having a valid will is essential for ensuring your wishes are followed and reducing the burden on your loved ones during an already difficult time.
Legal Requirements for a Valid Will in Australia
To create a valid will in Australia, you must meet these requirements:
1. Age and Mental Capacity
- You must be at least 18 years old
- You must have testamentary capacity (sound mind)
- You must understand the nature of making a will
- You must know the extent of your assets
2. Writing and Signing
- The will must be in writing
- You must sign the will in the presence of two witnesses
- Both witnesses must be present at the same time
- Witnesses must also sign the will
3. Witnesses
- Witnesses must be at least 18 years old
- Witnesses cannot be beneficiaries of the will
- Witnesses cannot be the spouse of a beneficiary
Key Components of a Will
Executor
Your executor is the person responsible for administering your estate. Choose someone trustworthy, organized, and willing to take on this responsibility.
Executor Duties:
- Locate and secure all assets
- Pay outstanding debts and taxes
- Distribute assets according to the will
- Manage estate administration
Beneficiaries
Clearly identify who will receive your assets. Be specific about:
- Full legal names
- Relationship to you
- Specific gifts or percentages
Guardian for Minor Children
If you have children under 18, nominate a guardian who will care for them if both parents pass away.
State-Specific Requirements
While Australian wills are generally similar across states, there are some differences:
New South Wales (NSW)
- Governed by the Succession Act 2006
- Allows for informal wills in limited circumstances
- Family provision claims possible under Part 3.3
Victoria (VIC)
- Governed by the Wills Act 1997
- Strict formality requirements
- Family provision claims under Part IV Administration and Probate Act 1958
Queensland (QLD)
- Governed by the Succession Act 1981
- Court can validate informal wills
- Family provision claims possible
Other States
Similar legislation exists in SA, WA, TAS, NT, and ACT with minor variations.
Common Mistakes to Avoid
1. Not Updating Your Will
Review and update your will when:
- You get married or divorced
- You have children
- You acquire significant assets
- Your chosen executor is no longer suitable
2. Unclear Beneficiary Descriptions
Be specific about who receives what. Vague descriptions can lead to disputes.
3. Not Considering Tax Implications
While Australia doesn’t have inheritance tax, capital gains tax and other taxes may apply to your estate.
4. Forgetting Digital Assets
Include instructions for digital assets like:
- Social media accounts
- Cryptocurrency
- Online businesses
- Digital photos and files
When to Update Your Will
Update your will when:
- Major life events occur (marriage, divorce, birth)
- Your financial situation changes significantly
- Your chosen executor or beneficiary passes away
- You move to a different state
- Laws change that affect your estate
Getting Professional Help
While you can create a will using templates, consider consulting a solicitor if:
- You have complex family situations
- You own business interests
- You have significant assets
- You want to establish trusts
- You’re concerned about potential disputes
Conclusion
Creating a valid will is one of the most important things you can do to protect your family and ensure your wishes are followed. Whether you use a template or seek professional help, make sure your will meets all legal requirements for your state.
Ready to create your will? Download our Australian will template to get started today.
Disclaimer: This article provides general information only and is not legal advice. Laws vary by state and individual circumstances differ. Consult with a qualified solicitor for advice specific to your situation.