Frequently asked questions

Any adult person who:

has assets;
has children;
is married, in a de facto relationship or recently separated or divorced;
is in a same sex relationship;
has a blended family;
owns pets;
is about to travel or have surgery,
should consider create a will.

Even if you believe you have no assets, it is still worthwhile creating a will because your estate may be entitled to substantial benefits under an insurance or superannuation policy. Furthermore, without a will, you will have no say over who cares for your minor children after you and your partner die (see "What is a guardian?").

When a person makes a will, they must appoint an executor. The executor is the person appointed by the willmaker to carry out their wishes after they pass away. In other words, they ‘step into the shoes’ of the deceased person. The role of the executor is to administer the estate as set out in the will and to protect the assets of the estate.

An executor has a fiduciary duty to act in the best interests of all beneficiaries when administering the estate. The executor must therefore discharge their duties with due care and loyalty to the beneficiaries.

The executor’s role starts as soon as the willmaker passes away. Some of the duties an executor would be required to undertake include making arrangements for the funeral of the deceased, determining the estate’s assets and liabilities, applying for a grant of probate, distributing the assets of beneficiaries, paying the estate’s liabilities and finalising the tax position of the estate.

Administering a deceased’s estate can sometimes be difficult and stressful, so a willmaker should consider whether it is worthwhile appointing an independent professional executor, such as Willed, to administer their estate.

A guardian is an adult who is appointed by the willmaker to look after their children if the willmaker and the other parent of the children dies. A guardian’s role is to look after the best interests of a minor child (i.e. a child under age of 18 years) for whom they have been appointed guardian. This means that you should not choose the other parent of your children to be the guardian of your children.

The guardian will be responsible for making decisions regarding the day-to-day control and care of your children, including decisions about their upbringing, education, health and welfare. Accordingly, a decision to nominate someone as a guardian is a serious decision that should be made carefully.

A beneficiary is a person or entity that you list in your will as being entitled to receive a benefit or asset from your estate when you die. Beneficiaries have several rights under a will, such as the right to:

• receive a copy of the will;
• be informed that a grant of probate has been applied for and what the administration is up to;
• a distribution of assets from the estate without delay;
• be informed of any litigation involving the estate; and
• challenge the will if they feel inadequate provision has been made for them in the will.

Where a person dies without leaving a valid will, then they have died 'intestate'.

If you die intestate you have no control or say over the distribution of your assets. In such circumstances, your assets will be distributed to your family members according to a pre-determined formula set out in the intestacy laws of the state or territory in which you lived at the date of your death or may fall to the state.

As there is no executor of the estate, in order to manage and distribute the deceased’s assets, a family member must apply to the court for Letters of Administration. The court will generally grant a Letters of Administration to the family member who is likely to inherit the largest share of the estate, such as the deceased’s spouse or children.

The process of applying for Letters of Administration is far more expensive and complicated than applying for probate. It is not beneficial to die intestate as it creates uncertainty, may result in distributions to relatives who have no relationship with the deceased and may result in an inheritance dispute.

A will is not legally binding unless all of the proper formalities have been strictly complied with. A valid will must adhere to the following formalities:

• the will must be in writing;
• the will must be signed by the willmaker in the presence of two witnesses, present at the same time, preferably using the same pen. Both witnesses must be over 18 years of age, of sound mind and be able to understand the English language;
• the willmaker and two witnesses must sign on the bottom of each page and on the last page of the will;
• no writing or alteration should be made on a will after it is signed; and
• the two witnesses should not be an executor or beneficiary under the will.

While some estate planning providers allow a will to be signed electronically, the Wills Estate Platform does not permit electronic execution of a will as this may invalidate the will because the formality obligations have not been properly complied with. A person who does without a valid will dies intestate.

The Electronic Transactions Act 1999 (Cth) and equivalent State and Territory legislation permit most commercial contracts, agreement and arrangements to be signed electronically, provided certain formalities are met. However, wills cannot be validly signed or witnessed using electronic signatures because the Probate Office of each Supreme Court requires an original (‘wet-ink’) of the will before approving a Grant of Probate.

Yes, it is possible for couples to have a joint will where the surviving spouse inherits the entire estate when the other spouse passes away. However, joint wills are not preferable because they cannot be revoked by the surviving spouse, regardless of the changed circumstances after the death of his or her spouse. As joint wills are impractical, a better solution is for a couple to make mutual or mirror wills which are separate wills which confer reciprocal benefits upon each other. The Wills Estate platform does not permit a couple to make a joint will.

A will does not expire or lapse; however, generally speaking, a will is automatically revoked when the willmaker marries, unless the will was made in contemplation of marriage.

Life changes, and so should your Will. It’s important to regularly update your Will every 3 - 5 years, or any time you experience a significant change in your life such as getting married or divorced, the birth of a child or addition of a new family member or a change in your assets.

At Wills Estate, we provide an optional annual subscription which allows you to make updates or changes to your legal documents in just minutes. All you need to do is log into your account, update the relevant section and you will be able to download your new document instantly. Once signed in the presence of two independent witnesses, your new Will is legally valid and binding.

Our subscription is just $10 per year for unlimited updates to your legal documents and also provides a secure platform for you to store them along with other critical life documents. When you write your will with Wills Estate, you automatically receive 12 months of unlimited updates included in the price of the document.

You should review your will every three to five years, whenever there is a major event in your life or where there are significant changes to the assets and liabilities compromising your estate. For example, you should update your will (by rolling-out a whole new will) in the following circumstances:

• if you change your name, or anybody named in the will changes their name;
• if an executor dies or becomes unwilling to act as executor or becomes unsuitable due to age, ill health or any other reason;
• if a beneficiary (someone who has been left something in the will) dies;
• if you have specifically left assets to your beneficiaries which you subsequently sell or give away or put in trust or into a partnership or which changes its character;
• if you marry, separate or divorce; or if you have children (including adopted or foster children);
• if you enter or end a de facto relationship;
• changes to the taxation or social security laws.

For example, if you specify child beneficiaries in your will and you subsequently have children, those newly born children would be excluded from your will.

Marriage will automatically invalidate your will (unless made in contemplation of marriage). Separation from your partner will not invalidate your will. As your will is not invalidated as a result of separation you may find that your former spouse will be entitled to a substantial part of your estate (even if you have already divided your property following your separation).

Depending on the state or territory in which you reside, divorce may automatically invalidate your will or may revoke part of your will (unless made in contemplation of divorce), such as revoking your former spouse as your executor or any distribution of assets to a former spouse.

Whether you are getting married or divorced, you should create a whole new will to reflect your current personal circumstances.

In your will you can detail your wishes in relation to organ donation. However, please note that your funeral wishes are non-binding on the executor.

You should let your executor and loved ones know you are an organ donor because your will may not be opened until after your funeral.

A codicil is a document signed by the willmaker that amends or creates additions to an existing will. Ordinarily, codicil is only used for minor changes such as appointing a new executor or adding or deleting a beneficiary. A codicil can be problematic because:

it may result in drafting or signing errors or inconsistencies between the codicil and the existing will which may invalidate the will;
the codicil can be lost as it is a separate document; or
can be the subject of litigation by an excluded beneficiary who alleges undue influence or fraud.
Generally speaking, it is much better to make a new will. You can use the Wills Estate Platform to create a new will. Given that codicils can be so problematic, Wills Estate currently does not allow the making of codicils on the Wills Estate Platform.

At law, a will can be challenged after the willmaker dies if:

• they did not have capacity to make a will at the time they signed it;
• they were under the influence of others (called "undue influence"); or
• a claimant believes inadequate provision has been made for their maintenance, education or general advancement in life (called "a testator’s family maintenance claim"). Generally, to make such a claim the claimant must be a close relative of the deceased, such as a spouse, partner, parent, child or step-child.

A willmaker must take particular care when seeking to exclude a spouse, de facto partner or child from their will as it raises the possibility of the will being challenged.

If your financial and personal circumstances are not straightforward, we strongly recommend that you seek legal advice from a lawyer. Such circumstances may include (but are not limited to):

• you have a child with a serious illness or disability;
• you are a beneficiary of a family trust;
• you own property outside of Australia;
• you do not live in Australia;
• you part own a business; or

there is a risk of a challenge to your will (e.g. you have a blended family and there is a risk that a child or step-child may be disinherited).

Estate assets pass in accordance with the terms of your will.

Estate assets include those assets held in your name or as tenants in common with another person, such as cash in the bank, shares/units, real estate, life insurance policies and personal property (e.g. as furniture, motor vehicle, artwork, jewellery and pets) owned solely by you or as tenant in common with another person.

Non-estate assets do not automatically pass in accordance with the terms of your will, such as assets held as joint tenants (e.g. real estate held by you as a joint tenant automatically passes to the surviving tenant), superannuation benefits and assets held in a discretionary or unit trusts.

Whether your superannuation benefits will be distributed in accordance with your will, is determined by:

• whether there is an executed binding death benefit nomination in place;
• the rules of the superannuation fund; and
• at the discretion of the superannuation fund.

You should contact your superannuation fund to complete a binding death benefit nomination form.

If you have overseas assets, you should consider either:

• disposing of your Australian and overseas assets by making an international will. You can only make an international will if your overseas assets are held in a country that is party to the Convention Providing a Uniform Law on the Form of an international will 1973. Before making an international will you should check whether the country in which your assets are held have signed up to the Convention. You cannot make an international will using the Wills Estate platform and we recommend you contact a lawyer to assist you; or
• making separate wills in every country in which you hold assets. The Willed platform can be used to make a separate will in Australia and we recommend you seek legal advice from a lawyer practising in the jurisdiction in which you hold assets to make a will that complies with that jurisdiction’s will formalities.

Due to the complex nature of estate planning and administration involving several jurisdictions, Wills Estate recommends making separate wills in each jurisdiction to ensure that your will complies with all relevant legal formalities in that jurisdiction rather than an making an international will. Also it is important to ensure that your will in one jurisdiction does not supersede your will in another jurisdiction.

A funeral insurance policy gives your family a lump sum payment to pay for funeral expenses when you die. There are lots of pros and cons of funeral insurance; however, if you do take out a funeral insurance policy, let your executor and loved ones know so that your executor can lodge a claim to access the funds necessary to pay for your funeral. Ideally, you should keep a copy of your funeral insurance policy with your will.

Alternatively, you can pre-pay for your funeral and let your executor and loved ones know the details of your pre-payment. Ideally, keep a copy of your pre-payment receipt with your will.

A power of attorney is a legal document that allows an individual (called the "donor" or "principal") to appoint another person (called the "attorney") to make financial, legal, personal and medical decisions for them. There are three different types of power of attorney:

• general power of attorney;
• enduring power of attorney; and
• enduring power of guardianship/medical treatment decision maker.

A power of attorney becomes invalid on the death of the donor/principal.

A principal usually appoints an attorney pursuant to a general power of attorney to make financial decisions or transact for them for a limited period of time or when they are overseas, such as buying or selling a property, voting at a shareholders’ meeting etc.

A general power of attorney does not give the attorney the power to make personal, medical or lifestyle decisions on the principal’s behalf. A general power of attorney immediately becomes invalid once the principal loses capacity to make their own decisions or is deemed to be mentally incapacitated.

An enduring power of attorney allows an attorney to make legal and financial decisions for the principal, including when the principal loses capacity to make their own decisions or manage their own financial affairs.

In the absence of an enduring power of attorney, a family member will have to apply to the administration and guardianship tribunal for authority to make financial decisions (called "administration") on behalf of a relative who has impaired decision-making capacity.

Applying for administration can be a complicated and lengthy process and an enduring power of attorney is a useful safety net in the event a mentally impaired person requires their financial affairs to be managed.

An enduring power of guardianship or medical treatment decision maker allows an enduring guardian/medical treatment decision-maker to make personal, lifestyle, and medical decisions on behalf of the principal, including when the principal loses capacity to make their own decisions. For example, an enduring guardian/ medical treatment decision-maker has the capacity to decide where a principal is to live or whether the principal should accept or refuse medical treatment.

In the absence of an enduring power of guardianship/medical treatment decision maker a family member will have to apply to the administration and guardianship tribunal for authority to make personal, lifestyle, and medical decisions (called "guardianship") on behalf of a relative who has impaired decision-making capacity.

Applying for guardianship can be a complicated and lengthy process and an enduring power of guardianship/medical treatment decision maker is a useful safety net in the event a mentally impaired person requires medical treatment.