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How to write a will – Tips for writing a legally binding will

How to write a will - Tips for writing a legally binding will
Georgia Carter Updated: 05 July 2021
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Planning ahead for the inevitable is never easy, but it’s necessary to make sure that your loved ones are cared for when you’re no longer around. A legally binding will can help provide a sense of closure and peace of mind so your family members know what they need in case anything happens. Perhaps you’re thinking about what will happen to your estate, home, or land. Maybe you’re worried about your beneficiaries and want to ensure that they receive all they deserve. Whatever the reason, a will is what’s needed to ensure that your final wishes are adhered to when you pass away.

There are many ways to go about setting up your will. Typically, you have the option to write it yourself, purchase a will writing kit, or hire someone else to write your will. This guide is designed to help you navigate writing a will and discover the option that suits your requirements.

Key facts

  • You must be 18 years of age or older to write a will.
  • You could write your own will, purchase a will kit, or hire a solicitor to write your will for you.
  • There are a few specific things you need to mention within your will that make it legally binding.
  • If you pass away without a will, the state dictates what happens to your assets.

How does a will work?

A will is a legal document that allows you to outline the beneficiaries who should receive your property, possessions, and funds after your passing. Your will is important when it comes to estate planning and it typically doesn’t matter whether you or an attorney draft up your will. Your will is legally binding provided that it contains your full name, your beneficiaries’ names, a sentence that states this as your will, the name of the person who will carry out your will, also known as the executor of your will. You’ll generally also need to specify what should happen to your assets after your passing.

Your will must have at least one witness signature, as well as that of the testator. Furthermore, you must be over 18 years of age for the will to be legally binding. The executor can be someone from the law industry or a personal relation. This person is considered the most important person of the will as they are in charge of collecting and distributing the deceased’s assets exactly as the will states.

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What are your options when writing a will?

There are a few options when writing a will. However, you must remember to research your state’s requirements when drafting up a will. After you’ve confirmed what your will needs to contain, you can decide how you’d like to write your will. You can use a lawyer, write it yourself, purchase a will writing kit, or advise the public trustee.

lawyer

Use a lawyer

You can ask your personal or any other lawyer to write your will for you. This is often done for a fee unless the person who wishes the will to be written is over 60 years old. The benefits of using a lawyer include your will being correct and legal.

writing

Write it yourself

It is extremely easy to write your own will, although it may get emotional. If you’re going to curate your own legally binding will, make sure you are aware of all the content and information that needs to be included in the will itself. For example, you need to write out, ‘This Will dated…is made by me…’ and list all your assets and obtain the signature of a witness.

notes

Buy a DIY will kit

A DIY will kit is ideal for those who want to ensure they are writing out their will correctly. The kit makes the entire process quick, simple, and straightforward. However, the kit can only be utilised in general cases and not for someone whose specifics differ from the norm, for example, if they want to leave out a specific beneficiary expecting to receive compensation.

government

Public trustee

If you’d like to craft your own will but would like guidance or advice along the way, you can write your will with the Public Trustee, an Australian government service. Using this service ensures that your will has been drafted correctly and that you have solutions to any issues that may arise.

What goes into an online will?

  1. Assets: This includes anything from your estate, buildings, and businesses to objects, trust funds, and gifts.
  2. Beneficiaries: These are the people who will be given an asset or some of your assets once you have passed. This can include a spouse, child, relative, friend, business, or charity.
  3. Executor: This is the most important person in your will. They are responsible for ensuring your will be carried out exactly as you wished. It is recommended that this person has a business, law, or finance background to make the deed less stressful and more efficient.
  4. Guardians for any children under 18: In the unfortunate and unlikely case that you pass away before your children reach the age of 18 years, you will need to list a guardian to look after them in your absence before they come of age.
  5. Burial and Funeral Instructions: These instructions are responsible for how your body will be handled and how you want your life celebrated after your passing.
  6. Record of your accounts, digital profiles and memberships: Listing your accounts helps the executor cancel or transfer your services. These include insurance policies, gym or club memberships, email accounts, and utility providers.

What isn’t included?

While there are many essential points to include in a will, certain things should not be added. Suppose you joint-own an asset, for example. For instance, if you co-own a business, the asset will automatically be transferred to the co-owner or joint manager. In addition, anything related to a superannuation fund should be left out. Proceeds from this fund are managed by an insurance provider and policy. They are not considered part of the estate or any other asset form. Any super proceeds should be discussed with the insurer. The proceeds of a trust fund are also not to be included in a will as they are managed separately.

What happens when I die without a will? 

If you pass away and have never written a will, then the court will issue a document called Letters of Administration. This document typically confirms a person’s authority to deal with the deceased’s assets. State and Territory laws will then determine who benefits from your estate, funds, and assets in this event. In addition, if you never officiated who is chosen as your children’s guardians, then it is left to the state to decide in your absence.

Types of wills

SingleMirror
For individualsFor couples
States the wishes of one person.Two wills that state the wishes of two people in both wills.
Contains one single will naming select individuals as beneficiaries.Contains two practically identical wills which name the other spouse as the beneficiary.
Typically contains a clause which states that if both spouses die on the same day all assets go to the couples children or a specific beneficiary.
writing will illustration

How to write a will in Australia

Writing a will may be straightforward, but it requires time and effort. This is one of the most important documents you can draft up, and it will affect those around you. When it comes to writing a will, there are some important steps to take and significant information that must be included.

Buy a DIY kit or look at examples

First, be sure to research examples of other wills to understand how they are expected to be drafted. It is recommended to purchase your own will writing DIY kit as this will guide you through the entire process and keep you on the legally binding path.

Make a list of your assets

You won’t want to forget to add in any of your assets. Before you start writing your will, make a list of all your valuables, such as cars and estates. It is also recommended that you include the estimated value of each asset, whether they come with a mortgage or loan, and if the asset requires a physical deed and the location of that deed.

Outline who your beneficiaries are

A beneficiary is a person who will receive your assets once you pass away. This can be a spouse, relative, or best friend. It is of the utmost importance that you clearly state exactly who the person is, who they are in relation to you, and what you wish them to receive.

Include instructions for your final arrangements

This can be a challenging part when writing your will. This is where you define what you would like to happen to your body, whether you’d like to be buried or cremated, and what service you’d like to have in your wake. This is also the space where you must outline if you’d like to be an organ donor.

Put it somewhere safe

Since your will has to remain physical, it is highly recommended that you find a safe and secure place to store it. Be sure to tell the chosen executor where you have put your will, as well as other family members or friends, just in case. Never staple or pin your will anywhere; always try to keep it neat and untouched.

Update it regularly

Remember to read through your will regularly and change or rewrite any specifics that no longer resonate with you. If you change your mind about anything or if a situation has altered, make sure your current wishes reflect in your will.

Take note:

Will kits and DIY wills are good for people with simple circumstances. If you personal circumstances are more complex, it is best to seek advice from a professional solicitor on how to best manage any changes.

Frequently asked questions and answers.

  • Do I need a lawyer to write a will?

    No, you don’t have to seek out a lawyer to write your will. If you are older than the age of 18, you can draft up your own will. However, some people prefer to either use or seek guidance from a lawyer to ensure that their will is legal and law binding.
  • Where to purchase a will kit?

    There are numerous DIY will kit options to choose from and a range of places to purchase them online and in person.
  • How do I write a simple will?

    A simple will can easily be written and stand as law binding, as long as all the significant parts are included. The contents of a will include a list of assets, beneficiaries, an executor, funeral plans and wishes, a guardian for any minor children, and a record of all your accounts. Furthermore, a will must have a witness.
  • When do I need to make a will?

    There is no definitive age limit or rule determining when a will must be written, but you have to be over 18 to make the will law binding. While there is no law governing the timing of the will, it is recommended that you draft up your will as soon as possible and regularly check and change it as necessary just in case something happens to you and your beneficiaries are left with nothing.
  • Are home will kits valid?

    A home will writing kit is completely valid and considered law binding so long as it contains a proper signature and a witness signature. Make sure you have included all the necessary items, assets, and information and have instructed your executor on your wishes. If you are still feeling unsure, take your will to a solicitor to check for you.

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