Do I need a will? 2017-12-19T14:22:55+00:00

Do I need a will?

It depends on what you want to happen after you die. If you do not have a will, the distribution of your estate is governed by the rules of intestacy. In the ACT, those rules are found in the Administration and Probate Act 1992. In general, the first $150,000 is paid to your spouse plus 50% of the balance. The other 50% is paid to your children (if any).

If you have a will, the distribution of your estate is governed by the terms of your will.

Should I see a professional to make my will?

Again, it depends. If you want the safety and security of knowing that your will is going to be effective and distribute your estate according to your intentions, then it is recommended that you retain the services of a professional to draft the necessary documents. But an estate plan is more than a will. You also need to consider a power of attorney, your superannuation death benefits and insurance. Do-it-yourself will kits do not provide a comprehensive estate plan. If the wording of your will is not clear (and bear in mind this is a very technical area where the words you use may be interpreted by a court to mean something other than what you actually intended), it could cost your estate thousands of dollars in legal fees to obtain a ruling from the Court on the true meaning of the will.

In addition, some of your assets may not fall into your estate on your death and your will may not reflect your true intent. Joint assets, assets in a family or discretionary trust, life interests, pensions, annuities and superannuation proceeds may not form part of your estate depending on circumstances. A solicitor experienced in estate planning will be able to give you advice on which assets will fall into your estate.

Do I ever need to change my will?

Major life changes such as entering into marriage or a de facto relationship, separating, divorcing or retiring may all necessitate changes to your existing will. Changes in the relationships of your children is another important consideration. Marriage always cancels any previous will unless that will specifically states that it is made in contemplation of the marriage. Separation or divorce does not cancel your will but divorce will, in most circumstances, cancel any gifts to your former spouse. There is no need to change your will simply because you change your address, although you should notify whoever is holding your original will of your new address.

Are there any other government fees or death duties?

There are no death duties in Australia. However, capital gains tax may be payable by your estate on the transfer of title of assets with a CGT liability. It is advisable to consult a solicitor experienced in estate administration before you dispose of major assets in an estate.

What is probate?

It is a document issued by the Supreme Court proving your last will, thus empowering your executors to carry out the terms of your will.

When is probate required?

Generally, if you own real estate (other than jointly with your spouse or any other person), or have other significant assets in your own name such as shares, debentures, money in financial institutions or life assurance policies. However, in small estates the assets may be able to be transferred without probate if there is no real estate involved.

Can anyone challenge my will?

In the ACT, the Family Provision Act governs who and the circumstances in which a will can be challenged. In general, challenges may be made by a person if they have cared for you or contributed to your maintenance during your lifetime and you made no or insufficient provision for them in your will.

This is a technical area and your solicitor can advise you further if you are contemplating leaving someone out of your will who could later challenge your will.