MAKING A WILL1. What is a Will?
A Will is a document that contains your instructions on how you want your property to be distributed after you have died.2. Some important words explainedThe person who makes the Will is called the Testator.
The Will appoints an Executor. Your Executor is the person who represents you after your death and does everything necessary to carry out the instructions you have set out in your Will. In carrying out your instructions the Executor is referred to as administering your Estate.
The person or persons who the Will says are to receive your assets are referred to as Beneficiaries.
In some (but not all) cases, the Executor needs to obtain Probate of the Will. This is usually the case where you had assets of substantial value when you die. After obtaining Probate your Executor will be recognised at law as the person who has the right to deal with your assets after your death. Your Executor gets probate by making an Application to the Supreme Court. The Court's approval is sought to recognise that the Will is valid and that it is the last one that you made. That approval is known as Probate. Probate is often confused with Probate Duty. Probate Duty was a tax. It was abolished (both at Federal and State level) in the early 1980s. (You can find out more about Probate by selecting "Handling Probate" on the AussieLegal menu).
When a Will is signed by the Willmaker (and the appropriate witnesses) it is known as having been executed.
One of the formal requirements for a valid Will is that two (2) people should see the Willmaker sign his/her signature to that document. Those people are called the witnesses. They also sign the Will so that (if need be) they can be called to confirm that it was the willmaker (and not someone else) who signed the Will and the circumstances in which the Will was signed.
When you cancel a Will you are known as having revoked it. All Wills contain a sentence cancelling previous Wills (ie. "I revoke all former testamentary acts.")
A person who dies without making a Will is said to have died intestate.
3. How old do I need to be to make a Will?
You need to be eighteen (18) years of age or older (there are some limited cases where a person younger than 18 can make a Will, but in such cases you need expert legal advice.)
4. Why make a Will?
Without a Will, on your death your assets may not where you wanted them to go.
If a person dies intestate, rules contained in legislation decide how your assets are distributed taking into account your family situation. In Victoria the division of your assets is made according to rules outlined in the Administration & Probate Act 1958. Some examples of the rules are as follows:-
If you die survived by a spouse* without leaving children, then the whole of your estate will pass to that spouse.
If you die survived by a spouse* and children, your estate is divided in set shares between that spouse and your children. Your spouse will receive the first $100,000.00, the personal chattels and one third of the balance of your Estate. The children will share the remaining two thirds of the Estate between them.
If you die and you are not survived by a spouse* or children but you are survived by our parents, your parents will inherit your assets.
If you die and you are not survived by a spouse*, children or parents but you are survived by brothers and sisters, then your Estate will be divided equally among the brothers and sisters who have survived you.
*Warning: These rules refer only to legally married spouses and do not include a defacto spouse.
The disadvantages of dying without a Will include:-
Your property may not be divided according to your wishes.
Your children and other minors in your care may not receive the financial and other assistance you would have desired or will take their lump sum payment at eighteen (18) years of age, whereas you may have wished to nominate a later age.
Your de facto spouse, stepchildren, friends and favourite charities may miss out.
Your Estate maybe administered by someone you disapprove of.
Not everyone wishes to distribute their assets in accordance with the rules set out in the legislation. The making of a Will ensures that your assets pass to the people of your choice. The rules in the legislation do not take into account that you may have a special person or other friends or even charities whom you wish to benefit.
Write Your Own Legal Will
An alternative to having a solicitor prepare you will is for you to write your own legal will. Our legal kit includes easy to follow steps and 3 complete examples to follow. Click on the link below for more information.
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