Wills

Key terms

Executor
the person or people who are responsible for collecting all of your assets, paying any debts and distributing your estate in accordance with your Will 
Estate
your assets and debts 
Beneficiary
someone you name in your Will to receive part of your estate 
Testatrix/Testator
the person who makes the Will 
Specific Bequest
when you leave a specific piece of property (such as a car, a bank account, or a piece of furniture) to a specific person or people 
Residuary Estate
the remaining part of your estate after any specific bequests 
Guardian
the person or people you appoint in your Will to care for your children 

What is a Will?

A Will is an important legal document that includes:

  • who is to get what part of your estate when you die
  • who is to be your executor
  • who is responsible for your funeral arrangements
  • who is to be the guardian of any children

Why should I make a Will?

If you do not have a Will then your estate will be divided according to a prescribed formula, which may well be contrary to your wishes. For example:

  • If you are married or in a defacto relationship, including a same sex defacto relationship, and die without a Will, then your spouse or defacto partner and, if applicable, any children will share your estate in prescribed shares. These shares may be contrary to your wishes and may in fact cause hardship to your spouse or partner depending on the circumstances.
  • If you are in a defacto relationship, including a same sex defacto relationship, your partner will have to prove your relationship to be entitled to a share of your estate. The relationship must have existed for at least two years or meet specified criteria. These are all things your partner would have to be able to prove to a Court to be entitled to a share of your estate.
  • If you are not in any relationship, your estate is divided amongst your family as prescribed by law.

For all of the above your spouse, defacto partner or family would have to make a costly application to the Court to be able to administer your estate. If you have a Will an application to the Court is often not necessary.

Not having a Will may cause your spouse, defacto spouse, family or friends considerable difficulty and expense at a time of profound loss and grief. Making a Will makes the financial aspects of your death much easier for your spouse, defacto spouse, family or friends to manage.

When should I make a Will?

You can make a Will at any time. If you do not already have a Will, you should think about making one as soon as possible. If you have bought property, you should think about making a Will or updating your existing Will. If you are in a relationship that breaks down, or if there are other significant changes to your circumstances you should check whether your Will needs to be changed.

How do I make a Will?

For a Will to be valid, particular legal requirements must be met. Thus it is preferable to see a solicitor when you prepare your Will. The solicitor will ensure that your wishes are expressed in the correct legal terminology.

The information your solicitor will need includes:

  • your full name, address, and occupation
  • the full names and addresses of your executor/s
  • any specific bequests you wish to make and who is to receive your residuary estate
  • the full names and addresses of all the people who are to receive a specific bequest or part of your residuary estate
  • any directions you would like to make about your funeral arrangements
  • the full names and addresses of any guardians of any children
  • the name and membership number of your superannuation fund.

Who should I appoint as executor/s?

Your executor/s should be people you trust to make sure your wishes are carried out. Your partner, close friends, members of your family, or your solicitor or accountant are amongst the most common choices. Alternately there are Trustee companies that may be available to undertake this role in certain circumstances. You need to decide who is right for you and your own personal circumstances.

The importance of appointing a guardian!

Under Queensland law when you appoint a guardian in a Will that person or people have priority over everyone except a surviving biological parent to act as guardian. When you appoint a guardian you:

  • Make sure your children are cared for by people selected by you;
  • Reduce the chances of disputes between relatives about who should care for your children;

Where should I keep my Will once it is signed?

Usually, your signed Will is kept at your solicitor’s office or in a safe custody packet at a Bank. Once you have signed your Will, notify your executor/s that you have made a Will and that they are the executor/s. Also tell your executor/s where your Will is being kept in safe custody.

If you are ready to make a Will, please go to our Online Will Service.