A will is a legal document which sets out who will receive your property and possessions when you die. It also details:
- who you want to receive your assets
- who you want to receive specific personal and heirloom items
- any religious or cultural arrangements for your funeral
- who you want as a legal guardian for any children under 18 years
- who you choose to be your executor when you pass away.
You can get your will written by a solicitor, by a Public Trustee or do it yourself with a will kit. If you use a will kit, you could then get it checked by a solicitor or Public Trustee. They can make sure it’s been done properly. If your will isn’t done properly, it will be invalid.
A valid and up to date will gives you the best chance of making sure your assets go where you want them to. Those with family or dependants should have a will. If you die without a will, the law decides who will get your assets – and this may not be who you wanted.
Having a up to date will is also important to help avoid any unwanted contestation or debate.
You should regularly review your will to ensure it matches your current wishes and reflects any key life changes you may have had. It should also be done with legal counsel, to ensure it is legally binding.
Make sure you put your will in a safe place and tell someone close to you where it is.
It’s important to note that the laws regarding wills and amending them varies between the states and territories of Australia, so you will need to be aware of these unique requirements to ensure you make your changes accordingly. For more information on the varying state and territory laws, visit the public trustee website in each state, they are listed here.
When to update your will
There are numerous reasons for making changes or updating your will. Generally, this should be done when there is a significant change to your assets, relationship status, or choice of beneficiaries. This can include the following:
- Buying or selling a major asset(s), such as a car or a home
- A change to your investments, such as a business or stock market shares
- Receiving an inheritance or money from family members
- Moving into a retirement village or residential aged care home
- Going through a divorce, separation, or marriage (in some states and territories this will void any existing will you have)
- A change to your beneficiaries
- A new beneficiary is born, such as a grandchild
- A death of a beneficiary
- You are diagnosed with a serious illness.
By updating your will when any of the above incidents occur you should hopefully avoid any unwanted contestation or debate, family dramas, legal disputes, and ongoing tension after you pass.
How often should a will be updated?
As those life events can occur at any moment it is important to remember that you may have to alter or update a will at any time.
If there are no changes to be made, then there is no need to update your will. However, it is worth reviewing your will every five years, to see if there are any changes that you would like to make and possibly help identify changes that you may not have thought of if you hadn’t reviewed it.
Updating your will
While there are some unique requirements for updating your will in certain states and territories, overall, Australia has a series of uniform policies that are in place to ensure changes are legally binding when made.
When updating your will, it is best to do this in the presence of a solicitor to ensure it is done properly and is legally binding. If you make changes without legal counsel, the changes may not be legally binding, and this could impact the validity of your will.
To make the appropriate updates and changes you can add a postscript called a codicil to your will. This is a new document featuring amendments and updates to the original will. It is best for small changes that are easy to understand otherwise you do run the risk of leaving legally unclear directions after your death.
To be legal, the codicil must be produced in the same way as the original will; in the presence of a solicitor of your choice or the Public Trustee, signed in writing and witnessed by two people. Once completed you must keep the codicil with the original will to ensure they are both read together.
You should avoid creating multiple codicils as this can lead to increased confusion. Instead, consult a solicitor if you must provide a second amendment to an existing will as it may be best to draft an entirely new document.
As mentioned above, there are unique laws in some States and Territories when it comes to updating a will. That you will need to be aware of.