What is a will?
A will is a legal document that details how you want your assets distributed after your death, who will act as executor of your estate, the establishment of any on-going trusts and who you wish to appoint as guardian of any minor children.
Any person over 18 who has started to accumulate assets should have a will.
Ways of making a will
There are low-cost options available, but to ensure your will is legally enforceable, it is best to prepare your will through a professional such as a trustee company or a lawyer.
Is my will current?
Your will should reflect your current circumstances and intentions.
Review your will after any of the following changes:
- marriage, separation or divorce or the start of a new relationship
- the birth of children or grandchildren, the death of relatives or other changes in your family
- any significant changes to the value of your assets
- any substantial changes to the way you own assets, including establishment of a family trust or a self-managed superannuation fund
- a new business or changing any existing business structure
- retirement from full-time employment.
What happens if I don't have a will?
If you die without a will or without a valid will, then your wishes may not be followed. A court will appoint someone to administer your estate and your assets will be distributed according to a strict legislative formula. Friends or charities will not be able to benefit.
What assets come under a will?
Your financial circumstances and how you own your assets determine how your assets are dealt with when you die. Your will may not govern the distribution of all of your wealth, only those assets you personally own (known as "estate assets"). Other strategies or documents may need to be put in place in relation to your non-estate assets to ensure that these are dealt with according to your wishes.
| Estate assets | Non-estate assets |
|---|---|
| Assets held in sole name, such as shares, jewellery, investment property | Jointly held assets, such as family home and contents, investments in joint names |
| Assets held as tenant-in-common | Private company - assets of company |
| Superannuation - if no binding nomination and trustee decides to pay the estate | Superannuation - where binding nomination held |
| Life insurance - if you are the owner and no beneficiary nominated | Life insurance - if someone else owns the policy or a beneficiary is nominated |
| Loans owed to you | Family trusts - assets held by the trust |
Inheritance - tax implications
Receiving an inheritance can be a fortunate event, but it can impact on beneficiaries in the following ways:
- impacting entitlements for a beneficiary on a means-tested pension or allowance or who is entitled to a concession card
- creating income-tax liabilities for minors
- creating capital gains tax liabilities for beneficiaries.
A professional adviser can advise on ways of transferring assets or establishing trusts to minimise tax liabilities for beneficiaries.
Who can challenge?
This area of the law is State-based and to minimise the risk of a challenge to your will, you should have your will drafted by a professional and review it regularly.
Options for transferring wealth (trusts)
Where beneficiaries are minors, have special needs or may not be able to manage an inheritance, it may be worth considering a testamentary trust through your will. This trust would hold assets on their behalf and distribute income at the discretion of a trustee.
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