Australian Legal Will Kit Guide

What is a Will?

A Will is a written document, in a special format, which is designed to carry out your wishes for your assets after your death. It can also provide instructions on other matters, such as selecting guardians for your infant children, and your funeral/burial arrangements.

A Will only takes effect once you as Willmaker die. It has no power while you are still alive. You can change your Will as many times as you like during your lifetime. Only the last Will that you validly make before you die will be used to reflect your final instructions.

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Do I need an Estate Planner ?

If your needs are more complex, an estate plan extends to asset protection and the ongoing minimisation of income tax for your beneficiaries.

A minor change or addition to your Will can be done simply by adding a ‘Codicil’ which is an additional document that becomes part of your Will. An estate planner can help if you need to make an addition to your Will. In some cases, it may even be better to write a new Will.

You may also want to consider an estate plan if you have minor beneficiaries or mentally incapacitated beneficiaries. An estate planner can provide legal advice and guidance.

Other examples of how estate planning could be useful are when you:

• Want to pass on a family business
• Have a superannuation payout
• Want to make a gift to a charity
• Have a capital loss
• Have property which may be caught by capital gains tax, ie it was purchased after 19 September 1985
• Have life insurance
• Have family debts
• Want flexibility in distributing your assets, eg there are more children on the horizon or for tax purposes
• Have more complex affairs involving family trusts and family companies

So why not take control of your assets and create a Will today. All Australians over the age of 18 should have a Will. Remember that you are never too young to have a Will and whenever your circumstances change, you need to update your Will.

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What should I do when preparing a Will?

Make a Will – if you don’t have one, you haven’t even reached first base! Try and be fair in your Will to all dependants. This will avoid problems later. Your Super Trustee is less likely to cut across your Will, and it reduces the risk of expensive litigation against your estate (brought by disgruntled dependents who have been left out).

You can consider making a Binding Nomination with your Superfund (if your Superfund offers this service). This form allows you to nominate beneficiaries of your choice to take your super entitlements if you pass away. The Binding Nomination (it must be this special form) is legally binding on the Super Trustee. The people you can nominate are:

• spouse, ex spouse or de factor spouse
• children
• other financial dependents
• your legal representative (as a trustee)

It lasts for 3 years, and then you have to renew it.

NOTE: For NSW residents, a binding nomination may not override the wishes in your Will. So cover your wishes for your super contributions in your Will.

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