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Wills
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Having an up to date Will is a really important way of making sure that your family and loved ones are taken care of after you die.
A Will is a legal document that names the people you want to receive the things that you own (including but not limited to your property, car, jewellery, furniture and any money left in your bank accounts) after you die.
Frequently asked questions about Wills:
In Australia, there are a different types of wills each serving different purposes and catering to varying estate planning needs:
Simple Wills: These are straightforward and uncomplicated, suitable for individuals with relatively simple estates and clear wishes for asset distribution.
Joint (or Mutual) Wills: These are made by two people, often couples, on terms that reflect each other's wishes, ensuring a consistent approach to estate planning.
Testamentary Trust Wills: A testamentary trust will combines a will with a discretionary trust deed, creating a trust that comes into effect after the will-maker's death. The will specifies the assets to be transferred into the trust, the trustees (who manage the trust and assets), the beneficiaries, and the terms of the trust, including how and when distributions are made. There are two types of Testamentary Trust Wills:
Discretionary Trusts: The trustee has discretion in how and when to distribute income and capital to beneficiaries.
Protective Trusts: Beneficiaries have less control over the trust and are typically used to protect vulnerable beneficiaries.
Statutory Wills: In cases where an individual lacks the legal capacity to make a will, The Succession Act 2006 (NSW) (“Act”) (s18) empowers the Supreme Court of NSW to authorise (or revoke) a will on behalf of a person who lacks testamentary capacity. The Supreme Court may
For a Will to be valid, the Will maker must sign it in the presence of two witnesses, who must also sign it in the presence of the Will maker. Ideally, the Will maker and witnesses should sign every page and use the same pen.
A person who dies without a Will is said to have died “intestate”. The unfortunate consequence of dying intestate in NSW that the testamentary wishes of the deceased are not considered. In NSW, the assets of the deceased are distributed according to intestacy rules legislated in the Succession Act 2006.
When someone dies intestate in NSW, the Supreme Court of New South Wales will provide letters of administration authorising an administrator to distribute the assets of the estate. The deceased’s assets will be distributed principally to any next of kin, usually being the spouse and children of the deceased. If the deceased was married, or in a de facto or domestic relationship at the time of their death, then the spouse will inherit the entire estate (after any liabilities have been discharged). Even when the deceased has children with their current spouse, the spouse still inherits the whole estate.
The exception to this rule occurs when the deceased has a spouse and also children from another relationship. In that case, the spouse inherits the deceased’s personal effects, a CPI-adjusted statutory legacy, and half of the remaining estate. The remainder is distributed to the children from another relationship.
It should be noted that any property that was held by the deceased in joint tenancy will automatically transfer to the surviving party after their death. This is usually the case for a marital home, which is generally owned jointly by spouses.
If a person dies intestate without issue or spouse in NSW, then other relatives may inherit according to a legislated order of succession. First in line to inherit are the parents of the deceased, followed by any siblings, then nephews and nieces, grandparents, uncles and aunts and finally cousins. If no eligible relation is identified, the assets of the deceased estate are inherited by the state.
It is a common misconception that young and healthy adults do not need a Will. The sad reality of life is that accidents happen, and lives are taken far too soon. For this reason it is important for anybody with any assets (including property, superannuation and savings) to have a valid will in place.
There is no public registry of Wills in NSW, but a number of private providers offering will registration facilities are in operation. NSW Trustee & Guardian offers a secure storage service for Wills, Power of Attorney and Enduring Guardianship documents called Will Safe.
Our legal team will work with you to make sure that your Will is drafted in accordance with your wishes, kept up to date and valid, even after significant changes in your life (such as divorce, buying or selling a house or re-marrying).
