A will is a written document that sets out how the will maker (testator) wants his or her assets to be divided after death.
To be legally enforceable, a will must meet all the requirements of the Succession Act 2006. The requirements are as follows:
The will must state the intentions of the testator in regards to the distribution of his or her property. If the formal requirements are not met, a legal will has not been created and you will be deemed as having died “intestate” (ie. without a will).
An executor is nominated by you in your will to administer your estate. The executor shall be responsible for seeing that the terms of the will are carried out as you desired. If you have not named an executor, an administrator will be appointed by the Probate Court. This is generally the person to whom you have nominated as the beneficiary of the largest portion of your estate.
You are entitled to distribute your assets to anyone you wish, however it is important to consider that if you do not make proper provisions for your spouse and children, they may contest the will after your death, which is a most unpleasant situation.
Your will should be kept securely. A photocopy should be kept amongst your personal papers with a note explaining where the original is kept. This will ensure that your beneficiaries are aware of the existence of the will and may distribute your property accordingly. Our law firm provides the services of holding clients’ original wills in the firm’s safe. It would be helpful (to your executor) to store with your will a list of people or entities to be informed of your death, such as relatives, friends, bank and insurer. You could also list down the major assets that you own and bank account numbers.
Sometimes you may wish to alter the terms of your will. The reason for this may include the death of a beneficiary, the birth of a new beneficiary, the acquisition of new assets and so on. It should be noted that marriage automatically revokes the wills of both partners, unless it is contemplated (provided for) in the original wills.
If a will needs to be updated and the required alterations are minor, this may be done by adding a codicil to the will. This is a separate document that is added to the will, containing the new provisions and changes, revocations of old terms and so on. This document must also meet the above legal requirements, and in many cases, it is easier to draft a new will entirely.
When a person dies intestate, it means that the person has died without a will. The Succession Amendment (Intestacy) Act 2009 (NSW) which came into effect on 1 March 2010 has amended (and clarified) both the Succession Act 2006 and the Probate and Administration Act 1898 in relation to intestacy rules. The major changes to intestacy laws include:
Of course the above intestacy rules do not apply if the deceased has a legally valid will in NSW.
The importance of a legal will cannot be underestimated, as certain loved ones may have no call on your assets without specific provisions in your will.
There are areas of will drafting where obtaining professional advice is in your best interests:
Comasters is able to help clients in drafting and finalising a new will.
© Comasters 2001. Revised November 2010.
Important: This is not advice. Clients should not act solely on the basis of the material contained in this paper. Our formal advice should be sought before acting on any aspect of the above information.