FAQs on Wills

What is a will?

A will is a legal document that states:

• who you want to give your assets to after your death (i.e. the beneficiaries); and
• who you want to appoint to administer your estate after your death (i.e. the executors).

Why should I make a will?

Making a will is important as it can:

• ensure your assets are distributed to your beneficiaries according to your wishes (to the extent permitted by the law);
• make sure your dependents (including your spouse or domestic partner, children, and former spouses or domestic partners from previous marriages or relationships) are provided for;
• allow you to choose your executors;
• provide directions to your executors to manage your affairs; and
• enable your estate to be settled more easily and quickly.

What happens if I die without making a will?

If you die intestate (i.e. without making a will), your estate will be distributed according to state intestacy laws and this may not be what you intend. In Victoria, your estate will typically be divided amongst your spouse or domestic partner and other next of kin in prescribed shares. If you do not have any spouse or domestic partner or other next of kin, your estate will pass to the state government.

If you are in a de facto relationship, your domestic partner will have to legally prove the relationship in order to claim a share of your estate after your death. This additional step in the legal process can be avoided by making a will and providing for your domestic partner as a beneficiary.

Should I use a DIY will kit?

It is best to have your will professionally written and reviewed. The law surrounding wills and estates is not as straightforward as it appears. For example, there may be tax implications to consider. Having your will prepared by a lawyer can ensure it is legally sound and up to date with the law, customised and appropriate for your personal circumstances, and reflective of your wishes after your death.

I have assets in Australia and overseas. Can my will cover all my assets or should I make a separate will in each country where my assets are located?

Generally speaking, it is possible for your will to cover your assets wherever they are located around the world. If the foreign countries where your assets are located are also common law jurisdictions like Australia, the grant of probate extracted in Australia for your will can usually be resealed or recognised in the foreign countries.

There are, however, exceptions. For example, if the foreign countries where your assets are located are not common law jurisdictions (e.g. France, which is a civil law jurisdiction, or China, which is a hybrid civil law and socialist law jurisdiction), a single will may not be suitable.

International estate planning involves intricate issues and you should seek legal and tax advice in the foreign countries where your assets are located. If separate wills are needed, coordination between Australian and foreign lawyers will be necessary to ensure your wills work properly with each other.

I hold an asset together with someone and I want to give my share of it to another person after my death. Can it be done in my will?

If the asset is owned as joint tenants, your share of the asset will automatically be transferred to the other owner upon your death. This is regardless of what you say in your will. You are able to gift your share of the asset to another person under your will only if the asset is owned as tenants in common.

Can I bequeath my superannuation through my will?

The trustee of your superannuation fund must distribute your superannuation according to the superannuation fund trust deed.

However, it is possible to bequeath your superannuation through your will if your superannuation fund allows you to make a binding nomination to nominate your estate as the nominee. Your superannuation will then be distributed to your intended beneficiaries in accordance with your will.

Alternatively, if your superannuation fund permits it, you can also make a binding nomination for your superannuation to be given directly to your intended beneficiaries as the nominees, instead of through your will.

How often should I revise or update my will?

It is prudent practice to review your will on a regular basis and whenever your personal or financial circumstances change substantially. For example, you should think about whether your will needs to be modified when:

• you acquire or dispose of a significant asset such as a property or business;
• you are in a marriage or relationship and it breaks down;
• you have a child or grandchild; or
• you or your family establish a family trust.

What happens to my will if I marry or remarry?

If you marry or remarry after making your will, your will is revoked unless it clearly states it was made in contemplation of that particular marriage or remarriage.

What happens to my will if I divorce?

If you divorce after making your will, your will is not revoked. However, and unless a contrary intention is expressed:

• any gifts to your former spouse are revoked;
• any powers of appointment (except those in favour of the children of both you and your former spouse) are revoked; and
• any appointments of your former spouse as executor, trustee or guardian (except those as trustee of property left upon trust for beneficiaries that include the children of your former spouse) are revoked.

Does my will protect my assets from creditors and claimants after my death?

No. Creditors and claimants can still make claims against your estate after your death. It is the duty of your executors to ensure the liabilities of your estate are paid before distributing the remaining assets.

What happens if my estate has more debts than assets?

Your assets will be used to pay off your debts in priority according to the law and your beneficiaries will receive nothing under your will. However, your life insurance proceeds and superannuation benefits are excluded from any bankruptcy of your estate and will be paid to your nominees.

Is my estate liable for estate duties or death duties?

No. These have been abolished.

Is my estate liable for income tax or capital gains tax?

If your estate produces income (e.g. from rental, dividend or bank interest) after your death, your estate is liable for income tax. A change of ownership arising from death, such as when property is transferred from the deceased to the trustees, executors or beneficiaries, does not ordinarily attract capital gains tax. However, tax laws are complex and tax advice should be taken.

Is my estate liable for stamp duty for the transfer of property?

No stamp duty is payable for the transfer of property from your estate to your beneficiaries.

If there is a testamentary trust (i.e. a trust created by your will after your death), no stamp duty is payable for the transfer of property from your estate to your trustees, but depending on the circumstances, stamp duty may be payable for the transfer of property from your trustees to your beneficiaries. Tax advice should be taken.

Are there tax advantages in creating a testamentary trust in my will?

A testamentary trust can have tax advantages, with optimum distribution of income and capital being made to beneficiaries. Further, testamentary trust income allocated to children under 18 years of age is taxed at the standard individual income tax rates, rather than the higher income tax rates normally applicable to minors.

What if my will cannot be found after my death?

If your will cannot be found after your death, you are deemed to have died intestate and your estate will be distributed according to state intestacy laws.

Are there authorities who can keep my will?

You may deposit your will for safekeeping with the Probate Office of the Supreme Court of Victoria for a small fee. They keep your will until it is withdrawn by your executors after your death (or by you at any time before your death). A nominal withdrawal fee is charged.

Who can see my will?

The following people can see your will:

• any person who is referred to in your will, whether the person is a beneficiary or not;
• your spouse or domestic partner, parents or guardians, and children;
• any person who is entitled to a share of your estate if you had died intestate;
• any parent or guardian of a minor who is referred to in your will or is entitled to a share of your estate if you had died intestate; and
• any creditor or claimant against your estate.

Who can contest my will?

The following people can contest your will:

• your spouse or domestic partner, and children; and
• your other dependents (including your former spouses or domestic partners from previous marriages or relationships) to whom you may have an obligation of maintenance after your death.

For what reasons can they contest my will?

They may contest your will on the following grounds:

• you did not make any or adequate provision for their maintenance in your will;
• your will was incorrectly executed, or was tampered with;
• you were pressured to make your will; or
• you lacked the mental capacity to make your will.

The above content is general in nature and is not intended to address your specific circumstances. We welcome the opportunity to have a chat with you and assist you with your legal issues or concerns. Talk with us and see the difference.

Updated June 2019.