Legal Wills FAQ's & Legal Will Terms

Legal Wills Terms explained:

Testator / Testatrix: is the person who makes the Legal Will.

Executor: is the person who represents you after your death and does everything necessary to carry out the instructions you have set out in your Will.

Beneficiaries: Are the person or persons who will receive the assets from the estate.

Witness: Are the two (2) people who see the Will maker signing his/her signature to that document. They also sign the Will so that (if need be) they can be called to confirm that it was the will maker (and not someone else) who signed the Will and the circumstances in which the Will was signed.

The Will is executed: This is when the will is signed by the Will maker (and the appropriate witnesses).

Revoke a Will: When you cancel a Will. Note. All Wills contain a sentence canceling previous Wills (i.e. "I revoke all former testamentary acts.")

Probate: Your Executor gets probate by making an Application to the Supreme Court. The Court's approval is sought to recognise that the Will is valid and that it is the last one that you made. That approval is known as Probate. In some (but not all) cases, the Executor needs to obtain Probate of the Will. This is usually the case where you had assets of substantial value when you die. After obtaining Probate your Executor will be recognised at law as the person who has the right to deal with your assets after your death. For more information on probate & applying for a grant of probate. Visit us here for probate information.

Intestate: A person who dies without making a Will is said to have died intestate.

Legal Wills Frequently Asked Questions:

What is a will?
A will is a legally enforceable document which sets out how you want your assets to be distributed when you die.

What happens if I die without a Will?
If you die without a Will, you are said to have died intestate. Each state has intestacy laws which determine how your assets will be divided.

Dying intestate (without a Will) may give rise to the following:
    *Your assets may not be divided according to your wishes.
    *Your children and other minors in your care may not receive the financial and other assistance you would have desired or will take their lump sum payment at eighteen (18) years of age, whereas you may have wished to nominate a later age.
    *Your de facto spouse, stepchildren, friends and favorite charities may miss out.
    *Your Estate maybe administered by someone you disapprove of.

The making of a Will ensures that your assets pass to the people of your choice. The rules in the legislation do not take into account that you may have a special person or other friends or even charities that you wish to benefit.

Who should I appoint as my executor?

The Executor or Executors nominated are the persons responsible for administering the estate. The executor can be a beneficiary. There are a large amount of responsibilities placed on a person when they become the executor of an estate and it is recommended that you discuss this with the intended person before you nominate them in your Will.

How often should my Will be revised or updated?

You should update your will every 3-5 years or when your circumstances change and you want your will to accurately reflect your wishes.

These situations include:
    *Separation or divorce
    * Starting / Ending a de-facto relationship
    *Death of spouse
    *Having children or grandchildren
    *The executor named in the Will is no longer alive or he/she is unable to handle the responsibility
    *Marriage (Getting married revokes all prior Wills unless they were made ‘in anticipation of marriage)
    *One of the beneficiary named in the Will may have died or you may not longer wish to nominate them

If I get married does that affect my Will?

Yes, your will is automatically revoked.

 What happens if I divorce?

Depending on which state you are in divorce will either revoke your Will or will nullify clauses relating to benefits which your spouse was to receive. You should make a new Will.

Does superannuation form part of my estate?

With most superannuation funds you can nominate a beneficiary who will be paid directly by the trustees of the fund without the need for it to form part of your estate. To be certain, please seek information from the trustees of your superannuation scheme.

What are "mirror/mutual” wills?

This is where a couple each leaves their estate to the other and should the last partner not survive the former by more than 30 days then the estate goes to the children or such other persons as may be directed. These Wills will generally have the same beneficiaries and gifts.

What are the requirements for a document to be a valid will?
    *The Will must be in writing
    *You must be over 18 years old and of sound mind (The Supreme Court can approve a Will for people under 18)
    *The Will must be signed and dated
    *The Will must be witnessed by 2 witnesses over the age of 18 and are not beneficiaries or family members of beneficiaries
    *The will must give away your assets

Do I need Formal Legal Advice?

Our Legal Will Kit is designed for people who have relatively straight forward estates. It may not be suitable for more complicated situations. You should seek expert legal advice, if you are considering one or more of the following:

    *A family discretionary trust
    *You want to give a person the right of occupancy in a house/unit for that person’s life or a set period of time.
    *You want to set up a testamentary trust (i.e. a discretionary trust in a Will)
    *You think that there is someone who might challenge the terms of the Will that you are proposing to draft. 

Disclaimer:

No investment advice provided to you.
This web site is not designed for the purpose of providing personal financial or investment advice. Information provided does not take into account your particular investment objectives, financial situation or investment needs.

You should assess whether the information on this web site is appropriate to your particular investment objectives, financial situation and investment needs. You should do this before making an investment decision on the basis of the information on this web site. You can either make this assessment yourself or seek the assistance of any adviser.