Common Questions About Wills in NSW
What Is a Will, and Why Do I Need One?
A will is a legally binding document that outlines how you want your assets to be distributed after your death. It allows you to specify who will inherit your property, appoint guardians for your children, and detail any special wishes you may have.
What happens if I don’t have a Will in NSW?
If you do not have a Will in NSW, you will die intestate, and your estate will pass in accordance with the Succession Act 2006 (NSW) (“the Act”).
Assets are divided according to succession laws no matter what kind of relationship you had with the person. If you don’t want someone to inherit from you, it’s important to have a valid Will.
CASE STUDY: Morgan and Riley are married with no children. Morgan owns the house that Riley and Morgan live in. Morgan’s mother passed away several years and Morgan has not seen Morgan’s father for 20 years. Morgan and Riley sadly pass away together. Under Intestacy Morgan’s closest living relative is Morgan’s father and would be beneficiary of Margan and Riley’s home
When a person passes away without a Will the appropriate person (usually the main beneficiary) is required to apply for Letters of Administration, which is a more complex and often more costly.
Who Can Make a Will in NSW?
Generally, in NSW, anyone over the age of 18 can make a will, provided they have the capacity to understand the nature and effect of the document. This means the person must understand:
- What they are “giving away”
- Who they are giving it to
- Any implication of these decisions
In some cases, minors can make a will if they have court approval or are married. It’s always advisable to seek professional legal advice to ensure your will is valid and reflects your intentions accurately.
What can I Include in My Will?
It is important that you nominate an Executor and Trustee in your Will. An Executor and Trustee is the person who will, usually with the assistance of a lawyer, get Probate for your Will, arrange for all of your assets to be “called in” (so that they can be transferred to your beneficiaries) and arrange for distribution of your estate.
You can include specific bequests, these are the special things that you may want specific people to have, for example wedding rings, war medals, antiques or artworks.
It is most important that:
- Your Will is in writing.
- Your Will gifts all your assets – your lawyer will assist you in wording your Will to ensure that all assets, current and future, are captured in the Will.
- Your Will is signed by you, in front of 2 witnesses who are not Executors or Beneficiaries of the Will.
What assets are included in my Will
All of the assets that are in your sole name and control with the exclusion of superannuation are asset for the purpose of your Will.
Where you own an asset with another person it may also be excluded from your Will if you own the asset “jointly”. Joint asset pass to the surviving joint owner on the passing of one of the owners.
Whilst Superannuation isn’t automatically covered by your Will, but you can still decide what happens to it. It’s important to get advice from your lawyer and financial adviser to make sure your wishes are carried out.
Can I Change My Will?
Yes, you can change your will at any time, as long as you have the capacity to do so. This is often done by creating a new will or adding a codicil (a legal amendment to your existing will).
It’s important to review your will regularly, especially after significant life events such as marriage, divorce, the birth of children, or acquiring new assets. As a general rule of thumb, you should get your Will out every Olympics to check that it still is in accordance with your wishes.
Some life events will revoke part, or all, of your Will, such as marrying or divorcing a spouse. It is important that you get legal advice at these critical times to protect your assets.
What Is an Executor, and What Do They Do?
An executor is the person you appoint in your will to manage your estate after your death. Their responsibilities include locating your will, applying for probate (if required), collecting and managing your assets, paying any debts or taxes, and distributing your estate according to your wishes. Choosing a trusted executor who is capable of handling these tasks is essential, and you may also appoint multiple executors or seek professional assistance to share the responsibility.
Do I really need a substitute Executor, Attorney or Guardian
It is a good idea to appoint a trusted and capable person in the role of Executor, Attorney and Guardian. It is equally important to have a substitute person appointed to reduce the risk of your appointment failing.
Case Study: Morgan and Riley have appointed each other Attorney under a Power of Attorney. Morgan also appoints a friend, Bob Smith, as an alternate but Riley does not appoint an alternate. Morgan and Riley are in an accident and whilst they have survived they have both lost capacity. Bob is able to make decision for Morgan however Riley’s family now need to approach the Guardianship Tribunal to obtain a Financial Management Order to assist with Riley’s affairs.
Can I include a guardian for my minor children in my Will?
Yes, however the nomination isn’t legally binding and, if there is a dispute, it is the Federal Circuit and Family Court of Australia that may decide in relation to the ongoing care of minor children.
Can I exclude someone from my Will?
Yes, you can, however that person may decide to make an application to the Supreme Court of New South Wales for family provision.
Under part 3.2 of the Act specific people can bring a claim against an Estate seeking provision. That is, they can request that they receive an asset (money or some other type of asset) from an Estate even though they were excluded from the Will. A person seeking to bring a claim against an Estate is required to make that claim within 12 months of the deceased person passing away.
Family provision is a complex area of estate planning where specific legal advice is required.
Can Someone Challenge My Will?
Other than a Family Provision claim, a Will can be contested if there are concerns about the validity of the document, such as claims of undue influence, fraud, or lack of capacity when the will was made. To reduce the risk of disputes, it’s important to seek professional legal advice when drafting your will.
Do I Need a Lawyer to Make a Will?
While it’s possible to create a DIY Will, it’s highly recommended to seek legal advice when drafting one. A lawyer can ensure that your Will is valid, properly executed, and comprehensive, reducing the risk of errors or disputes. They can also provide guidance on complex matters such as tax implications, blended families, or business assets. A professionally drafted will gives you peace of mind knowing that your estate will be handled according to your wishes.
