Why make a will
A will allows you to choose the person you want to appoint as your executor to distribute your estate to the beneficiaries you nominate. All your assets, including your home, land, car, money in bank accounts, animals, shares, insurance policies, jewellery, paintings, furniture and personal belongings form part of your estate.
You can also make specific requests for your funeral. The executor of your will should try to carry out your wishes unless there is not enough money in the estate, or the directions are unreasonable or difficult to carry out.
If you don't wish to be cremated, you can give a written direction in your will. All other directions about your funeral are not legally binding.
You can choose the beneficiaries you want to inherit your estate, and how you want to split the inheritance.
For more information see Wills on the NSW State Library website.
Dying without a will (intestate)
If you die without a will (known as dying intestate), the rules of intestacy apply. This means that your assets will be distributed to certain relatives in an order set by the law.
This formula is based on family relationships. Your spouse, children, parents, siblings, grandparents, aunts and uncles and cousins are entitled to your estate. Each category must be exhausted before moving onto the next category.
If you have a spouse and you have children from another relationship, your spouse will be entitled to the personal effects, a statutory legacy of $350,000 and one-half the remainder of the estate.
If you die without a spouse, children, parents, grandparents, aunts and uncles or first cousins, your estate will go to the State.
For more information, see Procedure on death if there is no will on the NSW State Library website.
Appointing an executor
In your will, you need to appoint an executor to carry out the instructions in your will and distribute your estate.
An executor has a very important role as they have a responsibility to arrange your funeral, complete legal documents to apply to the Supreme Court for a grant of Probate and distribute the estate to the beneficiaries.
If you appoint more than one executor you need to decide whether you want them to be able to act jointly, or jointly and severally.
If you appoint them jointly, they must both agree to any decision.
If you appoint them jointly AND severally, then the executors will be able to make decisions together or individually.
You also have the option to nominate a substitute executor in case the first executor dies, resigns or loses mental capacity.
If you appoint your lawyer, the lawyer has strict rules they need to follow to act as an executor, and there is certain cost related information they will advise you of. You should speak to your lawyer before appointing them. The lawyer will be able to recover their costs from your estate.
If you are not sure what to do in your circumstance, you should get legal advice.
Legal requirements of a will
A will must be:
in writing
signed by you, and
witnessed by two other people who are not beneficiaries.
You be over 18 years of age and must have capacity at the time of making your will. This means you must be able to understand what you are doing and how you want your estate to be distributed when you die.
If a person is under 18 years of age or lacks capacity, a will can be made, revoked or changed by an order of the Supreme Court of NSW. You should see a private lawyer.
Nominating guardians for minor children
Your will can nominate who you would like to care for your children after your death, but the nomination is not legally binding or enforceable.
Your wishes may be considered if there is a dispute, but ultimately the Court would consider what is in the best interests of your children at that time.
If you are concerned about who will care for your children if you die, you should get legal advice.
Provisions for adult child who has an intellectual disability
It is possible to make provision in your will for an adult child with an intellectual disability where they do not have the mental capacity to manage their affairs. This may include setting up a trust fund like a Special Disability Trust.
You will need to get legal advice to help you determine the best way to do this. You can speak to a private lawyer or NSW Trustee & Guardian about your options.
Special Disability Trusts
A Special Disability Trust is a new type of trust fund that allows you to make long term financial provision for your child without the risk that they will lose their entitlement to Centrelink benefits.
There are very strict requirements that must be met for the trust to be eligible so you should get legal advice. You can also talk to NSW Trustee & Guardian.
Preparing a will
You can write your will yourself using a will kit.
To make sure your will is valid and meets all legal requirements, you can get your will prepared by a private lawyer or NSW Trustee & Guardian.
A lawyer can:
make sure your will is correctly written, signed and witnessed
make certain that your wishes are clearly expressed in the will
advise on how you can provide for your family members or close friends
advise on any potential liability for capital gains tax which might result from provisions in your will
advise on choosing an executor and on the executor's right to be paid for administering your estate
advise on the most effective and efficient way to arrange your affairs
store the will in a safe place.
You can get a will prepared by a private lawyer or NSW Trustee & Guardian.
The NSW Trustee & Guardian will not charge a fee if you are eligible for a full Centrelink Age Pension. They will charge a commission for dealing with the estate after death.
To find a private solicitor, you can call the Law Society of NSW on 02 9926 0333, search the Register of Solicitors or make an Online referral request.
Updating a will
A will does not expire. It operates until it is revoked (cancelled). You can update your will at any time if you still have capacity. You should speak to your lawyer or NSW Trustee & Guardian about updating your will.
You should update your will if you:
get married
get separated or divorced
have children
have a change in circumstances.
A will is revoked if a person marries or gets divorced, unless there are specific provisions are made in the will. If you are separated but not yet divorced, the will is still valid unless it is revoked.
If a beneficiary changes their name, you don’t need to update your will. When an application for probate is made, the beneficiary will have to show that they are the same person named in the will by providing a copy of their change of name certificate or marriage certificate.
Storing your will
There is no legal requirement to register your will but it’s important to store your will in a safe place and let your executor know where it is located.
You can store your will:
at home
with your lawyer
at your bank.
Wills made by minors or people lacking testamentary capacity are held with the Supreme Court of NSW.
If you want to find a will, see Find out if we hold a Will made in NSW on the NSW Government website.
If your will was prepared by a lawyer and the law firm has since closed or the lawyer has died, you should contact the Law Society of NSW for information about whether the firm has been taken over or if they have information about where the files are being held.
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