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Making a Will

Can I make a will?

You must be aged 18 or over to make a will. In some states the law allows under-18s to make a will. For example, if they are married or if a court authorises this.

You must also have "testamentary capacity". This means that you:

  • Know what assets you have, and how much they are worth. You don't have  to know their exact value, just enough to be able to decide who should receive them.
  • Are able to decide who would fairly receive your assets.
  • Understand that your husband/wife and children might need to take priority over other people you may want to leave your assets to.

If there is a question about a person's mental capacity, make sure you talk to a lawyer. You can ask a doctor with relevant experience to make an assessment of competence and keep this assessment with the will.

What to include?

You can include in a will:

  • Assets, such as houses, cars, money, shares, cash, etc.
  • Rights and powers, such as a right to appoint a trustee of a family trust.
  • Specific belongings such as a violin, painting, books, photos, etc. Be sure if you list specific items that they are easily identified.

Some assets such as superannuation and life insurance may not be distributed in a will. For example, a superannuation benefit may go directly to the person nominated to the superannuation fund. If you have a superannuation entitlement, make sure you get in touch with the fund to nominate the people that you want to benefit.

What about my house?

This depends. If the house is registered in only your name, you can put it in the will.
If you own it with another person, such as your husband/wife, there are two ways you can legally own it:

  • jointly — this is the most common way of owning property and you would be a "joint proprietor" with the other person; or
  • as "tenants in common". This doesn't mean that you are tenants; it means that you each own a certain percentage of the property (usually 50 percent) and you can deal with your percentage however you want to.

If you own your home as a joint proprietor, then, when you die, the home automatically passes to your other joint proprietor. It makes no difference whether you have a will or not. But if you own your home as tenants in common, you can leave your percentage of your house to whoever you want in your will.

If you own your home as a joint proprietor, but would like to leave your share of the property in your will, you will need to have the title changed — this is usually not very expensive.

Who can I leave assets to?

You can leave your assets to whoever you want, including charities and not-for-profit organisations. This is a very important decision, and you should think about it carefully.

It is important to leave enough assets to the people who depend on you so they can survive after you are gone. If you don't, they may be able to take legal action to get a bigger share of your assets after you are dead.

If you leave assets to a person under 18, those assets must be held in trust until they turn 18.

What about debts?

Unfortunately for those who survive you, any debts that you have while you are alive remain as debts.

Anyone who can prove you owed them money can make a claim from the assets you leave in your will. This will happen even if you don't mention the debt in your will.
If you have debts, it's a good idea to say that you want them paid out of your estate before your assets are distributed. Otherwise a person who inherits an asset with a debt, for example property with a mortgage, may not be getting the amount that you intended.

Who's who?

Beneficiary — A person who receives something from an estate.
Executor — The person (male or female) who is responsible for administering a will.
Guardian — The person that you would like to look after your children who are under 18.
Testator — The person who makes the will. This person is sometimes called the will-maker.
Trustee — A person who administers a trust established under a will, eg a trust for children.

Use this online facility to make your own will - click here.

Read this: This fact sheet is intended to be general information about the law in Australia. It is not a substitute for legal or other professional advice.

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