Australia: Plain English Guide to Making a Will

Last Updated: 13 February 2013

Most of your life is spent working to build up assets. Making a Will is the only way to ensure that your assets pass to the people that you choose.

A Will is a legal document that appoints your personal legal representative (your "Executor") upon your death and names the people that you want to receive the property and possessions you own at the date of your death.

This Plain English Guide looks at why you should keep your Will as general as possible, but remember that your lawyer is available to answer any other questions or provide advice when you need it.

We are frequently asked to make Wills whereby for example property A is left to son Bill and property B is left to daughter Kate. The client will usually tell us that the properties are of similar value and that they really want to benefit their children equally. However one of the children may have an affinity with a particular property and the clients therefore will prefer that that child receive that particular property. The other property would be left to the other child and then the residue of the estate would be left to the children equally.

A decision to make that type of Will requires careful thought. For example:-

  • The properties might be of equal value now but will that change in the future. For example property A might be re-zoned as commercial while property B might be devalued due to the construction of a high-rise building next door.
  • Property A might be your home and property B an investment property. The values might be equal but property B might have a significant Capital Gains Tax liability when it is eventually sold.
  • You might unexpectedly need to borrow money at some time in the future. If the loan is secured by property B and you die without changing your Will property B will still pass to Kate but in all probability subject to the debt.
  • You might unexpectedly decide to sell property B thereby converting its value to cash. The gift of the property to Kate would fail because you no longer own the property at the date of your death and the cash is part of your residual estate and would pass to the children equally.

In each of the above circumstances Bill would be happy and Kate would not. Circumstances will always change between the date of your Will and the date of your death. Therefore we would normally advise that your Will should be kept as general as possible. If you leave the whole of your estate equally to the beneficiaries you could be sure that they will benefit equally no matter what the circumstances are at the date of your death.

If you are particularly concerned that Bill would end up with property A there are a number of ways in which this might be achieved. The best way of achieving your goals will depend on your individual circumstances and we will be happy to advise you further on this aspect.

How can Coleman Greig help you?

Coleman Greig can simplify the process of making a Will. We understand your needs and can help you to make things as clear as possible in your Will. The advantages of using Coleman Greig include;

  • We can look at your estate in detail, and how you would like to divide it, making sure that you understand the implications of your wishes;
  • Where necessary we can work with your specialist financial or taxation advisors;
  • You receive efficient, reliable and prompt service at all times with plain English explanations and advice;
  • We can review your Will and estate plan at the various stages in your life to make sure that you and your family and friends are covered;
  • We can advise you in relation to making a Will to address special circumstances such as providing for a disabled beneficiary, establishing trusts in your Will, managing your business after your death, or structuring your Will to provide tax minimisation and asset protection benefits for your beneficiaries;
  • We may be able to act as an executor of your Will if you wish and look after the administration of your estate;
  • Your Will can be held by the firm in our safe custody.

What should you consider prior to making an appointment to see a lawyer at Coleman Greig?

Before coming to see one of our lawyers please consider;

  • Who will be your executor?
  • Would you like to appoint more than one executor or an alternative executor in the event that your first choice is unwilling or unable to act as your executor?

Who will be the beneficiaries of your Will?

Prepare a list of your major assets and liabilities.

Is there any person who is likely to be angered by your Will or who is likely to challenge it? If so be sure to raise this with your lawyer.

Other legal services

At the same time that you are making your Will you might also consider appointing a person as your attorney under a Power of Attorney as well as a guardian under an Enduring Guardianship. Please refer to our Plain English Guides on Powers of Attorney and Enduring Guardianships for more information or discuss these documents with your lawyer.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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