Q & A
Can I use your Will Kit Australia Wide?
Yes. Wills made anywhere in Australia have the same basic requirements, because willmaking law throughout Australia all derives from the English system.
Our Will Kit is very particular about the basic Will-making requirements (such as identifying the will-maker, signing it the right way etc), and for that reason you can expect a Will made with our Will Kit to be accepted throughout Australia.
What does vary around Australia is probate application procedure, but that affects how your executor USES your Will - not the Will itself.
What happens if there is NO WILL varies around Australia too (which is why a committee has been working on "uniform legislation" and "succession law reform" for about 15 years).
What is a Will anyway?
A Will is just a document in which you say two basic things:
- Who you want to inherit your possessions when you die, and:
- who you want to look after things for you.
Do you really need a Will?
If you die without a Will it may cause problems for your family, or it may not. It depends on what assets you own, and the way you own them.
If you own assets jointly with another person, they still belong to the other joint owner when you die, so you don't need a Will to dispose of them. However, assets in your own name have to be transferred to someone else, and if you want any say in who gets them you need to make a Will.
When you die, your executor takes your Will to the Probate Office, which gives them an official "probate" certificate that authorises them to transfer ownership of your assets to your beneficiaries. (That probate application process is referred to as "proving the Will").
What if I die without a Will?
If you don't leave a Will, the Government does not "get the lot" as some people believe. Your assets go to your next-of-kin according to rules given in government legislation.
In Victoria for instance your spouse gets the first $100,000 plus one third of the balance, and the children get the rest. The rapid increase in real estate prices in recent years means that your spouse's entitlement does not even cover the family home, so in extreme cases children could force a spouse to sell the house to give them their share. (As far back as 2004 we proposed (unsuccessfully) to a Supreme Court committee that the $100,000 limit be dropped to provide security for the spouse).
Dying without a Will also means you do not get to name an "executor" to look after things for you, so "the system" appoints an "administrator" instead. Your next of kin have the right to apply to be administrator and they can do so in a certain order. Your spouse has the first right to apply, followed by your children, parents and brothers and sisters.
If there is a Will but no executor, the estate still goes to the beneficiaries named in the Will, but one of the beneficiaries in your Will arranges things (since there is no executor). The beneficiary applies for "Letters of Administration with the Will annexed" instead of Probate.
Making a Will keeps everything simple and definite, and everyone should do it because it is so easy to do.
Steps to make a Will
There are only seven simple steps in making a Will, of which the most important are:
- Name your executor (or executors)
- Name your beneficiaries, and
- Sign the Will properly.
Where to store your Will
Wills are not registered anywhere, so you can keep them wherever you like. Some people keep them in banks, or in their own house.
(In Victoria you can also keep them at the Probate Office for a "one off' fee of around $20. Executors are required to search there as part of the probate application process so it guarantees the Will is found - although it would be nice if your executor knew about it earlier).
Challenges to your Will
"Cutting someone out of your Will" can create conditions for your Will to be "challenged" by those left out.
Challenges usually come from children who were left out, and some States have legislation that seems to encourage it - for example, Victoria made big changes to Wills legislation on 20 July 1998, so that people for whom you had a "responsibility to make provision" can ask the Court to change your Will. Further changes to Victorian legislation in 2001 allowed "domestic partners" to claim (including "same-gender" domestic partners). Cases so far do not give claimants an easy ride.
It is often suggested that if you want to cut someone out of your Will you should include your reasons in the Will - and seek advice on the matter before you do it.
Your Power of Attorney goes with you
In general, powers of attorney become invalid on the death of the person who gave the power.
Can you make a "Testamentary Trust" with the Will Kit?
Any Will can direct the executor to hold assets in trust for some purpose, but we do not recommend that you use our Will Kit for this purpose . (Testamentary trust documents these days go into a lot of detail about the control of such trusts).