Frequently Asked Questions

When it comes to Wills one of the biggest misconceptions is that “I don’t need one”. This is simply untrue for the vast majority of people.

Many people have intentions of making a Will, but simply never get around to it. Yet none of us know what’s just around the corner.

It’s essential to have a high quality legally binding Will to avoid bitter arguments, disputes, confusion and heartache at a time when loved ones are trying to cope with the loss of someone close to them.

Having a Will prepared is very simple and will secure your wishes for the future.

The short answer is that if you have children, assets or keepsakes you wish to be cared for or distributed after your death, you need a Will. These may include significant financial assets such as property, shares or savings but it can also include superannuation and associated life insurance and keepsakes that may only have sentimental value.

Those most in need of an up-to-date Will include those who are:

• A business owner
• Travelling overseas, or interstate regularly or for a long period of time
• Undergoing a serious medical operation
• Likely to be incapacitated, out of action or out of contact for a significant period of time
• Frail or have chronic illness.

However you should also prioritise having a Will if you:

• Have children or are planning a family
• Are getting married or divorced
• Have a long-term partner or that long-term relationship has ended
• Live with or about to move in with a partner
• Are buying or have property, a business or other assets
• Have a complex family situation.
• Have superannuation, particularly if it includes a life insurance component, as this may require a specific Binding Death Benefit Nomination to ensure your nominated beneficiary receives the benefits you intended.

The benefits of having a high quality and up-to-date Will include:

• Securing your wishes
  A Will is essential if you want to ensure that your wishes are carried out after your death.
• Peace of mind and the avoidance of disputes
  You give yourself peace of mind knowing that you have put your affairs in order. Making a Will can help spare your family and friends needless heartache and problems.
• Specific Bequests
  You can specify exactly where you want your money and possessions to go. You can make special provisions for your immediate family, other relatives, friends and charities. You may want to give away items of sentimental value as well as those of monetary value. Only by making a Will with specific provisions can you be certain that a special item goes to the person whom you want to receive it.
• Legal Guardian for children
  If you have children under 18 it is important to make provision for them in the event of your death. This is particularly important in the case of one-parent families or unmarried parents living together.
• Tax
  There are financial advantages of having a Will. In certain circumstances, you can use a Will to minimise the amount of tax payable and your family will be spared unexpected legal bills.

If you die without leaving a Will you are said to die intestate and the Law decides how your money and possessions should be divided. Although your next of kin will receive some of your estate, the situation is more complicated and problematic than people realise. Your assets may end up in the wrong hands.

Without a Will, in certain circumstances your estate may simply pass to the Government and you will have had no say in where your money or possessions will go. Refer to the section on INTESTATE – WHAT HAPPENS WHEN THERE ISN’T A WILL for more information.

If you don’t already have a Will the best time to do it is NOW. It also makes sense to review your Will every few years, as your circumstances may have changed and an updated Will makes sure your wishes are absolutely clear.

Making a Will is not tempting fate. If you don’t make a Will you could leave many problems for your family to sort out, and cause unnecessary heartache and disputes. 

If you have children, assets or keepsakes you wish to be cared for or distributed after your death, you need a Will. These may include significant financial assets such as property, shares or savings but it can also include superannuation and associated life insurance and keepsakes that may only have sentimental value.

If you have children, assets or keepsakes you wish to be cared for or distributed after your death, you need a Will. These may include significant financial assets such as property, shares or savings but it can also include superannuation and associated life insurance and keepsakes that may only have sentimental value.

When preparing a Will you should consider and gather information on the following:

1. Property – record your major assets and their approximate current value. Obvious examples include your home, any second or holiday home, your household contents, furniture, clothes, antiques, jewellery, your car, other items of value.

2. Financial Assets – get details of your bank and building society accounts and balances, stocks, shares and investments, pension and superannuation benefits, life insurance, premium bonds, unit trusts, business assets, any other financial interests.

3. Any money you owe – this includes any mortgage outstanding, other loans, overdrafts, hire purchase agreements, credit card debts, other money owed. Make a note though if all of some of these debts will be paid off on your death via an insurance policy or similar.

4. Money you are owed – record the name and address of any debtors together with the date of loan and amount outstanding.

5. Your Executors – note their full names and addresses. We normally recommend a family member or close friend together with a professional who can be objective and give guidance.

6. Guardians – if your children are under 18 years of age. Note their full names and addresses.

7. Specific Bequests – are their any specific provisions you would like made for your immediate family, other relatives, friends and charities? This may include items that have sentimental value only.

8. Individuals and/or Charities – make sure you know their full names and addresses of any person or body whom you want to benefit in your Will and what kind of gift you wish to make to each.

9. Powers of Attorney – give some thought to whether you need a Power of Attorney or Enduring Power of Attorney (see a separate fact sheet on these) and who you may like to appoint.

10. A list of further questions – if there is any specific questions or concerns you have, take a note of them.

Before you make a Will, ask the people you wish to appoint as Executors and Guardians and if they will act on your behalf.

In your will you may have items, possessions or money you wish to go to certain people or organisations – these can be referred to as gifts. The three main ways of making gifts are as follows:

1. A gift of a specific item to an individual or an organisation.

2. A gift of a specific amount of money. Inflation can reduce the real value of your gift, you may wish to review this from time to time.

3. All the rest of your property, not already given away under the above. This is known as your “residuary estate”.

If you’re worried about who will get your stuff after you die or you don’t want certain people to benefit from your estate or assets, you need a high quality, up-to-date Will.

If you don’t already have a Will the best time to do it is NOW. Having a Will prepared is very simple and will secure your wishes for the future.

It also makes sense to review your Will every few years, as your circumstances may have changed and an updated Will makes sure your wishes are absolutely clear.

Gill and Lane Solicitors can help you make sure your future wishes are followed.

Husbands and wives should make separate Wills, as should de-facto partners.

One Will is not enough, but they can be prepared at the same time.

Gill and Lane offer packages for two Wills to reduce the overall costs.

Keep your Will in a safe place and make sure someone knows where it is. Some people like to store them in a safe or a fire-proof box but this is up to you.

Gill & Lane will store your Will free of charge and give you a certified copy.

You should also provide a copy of your Will to your Executor.

It’s essential to have a high quality, legally binding Will to avoid arguments, confusion and heartache at a time when loved ones are grieving.

Having a Will is a great start but it’s equally important for it to be up-to-date.

Life and circumstances change over the years and so should your Will. There may be marriages, divorces, children, grandchildren and changes to your assets that need to be taken into account.

It’s a good idea to review your Will every five years or so. You can use your Driver’s Licence renewal date as a reminder to also review your will.

It may not need changing every time, but it’s a good idea to check just in case.

There are many reasons why you may need to change your Will.

• If you marry – marriage revokes a Will unless the Will has been specifically made in anticipation of a particular marriage. You will also probably want to make a provision for your new spouse.

• If you divorce – divorce automatically cancels any bequest made to a former spouse, so if you do want an ex-spouse to benefit in anyway you must state this.

• If you separate – if you are separated from a spouse but not divorced he or she still has a legal claim on your estate, no matter how long you have been apart.

• If you have a new live-in partner – if you are living with a new partner they may also have an entitlement. You should consider making specific provision for them.

• The birth of a child or grandchild – you may want to change your Will to include a gift for them, even if it’s just has sentimental value. You may need to nominate wishes for how a dependent will be cared for.

• Gift reallocation – you may want to change who you have nominated to receive a gift. If you don’t reallocate the gift, it will become part of your residuary estate, that is, what is left of the estate once all the specific gifts in the Will have been made. It is then up to the Executor to determine what happens to the gift.

• Changing Your Executor – If one of your Executors dies or you want to change your Executor for any reason, you will need to appoint someone else.

• Changes in the value of your estate – you may suddenly find that there is a significant change in your financial circumstances – you might, for example, have received an inheritance yourself. Equally, of course, you may perhaps have lost money on the Stock Market or through the drop in property values. You need to think about changing your Will to take account of this.

• Cash legacies – you should also bear in mind the effects on cash legacies. What you thought was a substantial gift may turn out to be worthless by the time of your death, if you have not reviewed your Will in the meantime. It could make sense to state a percentage rather than a fixed sum or make the legacy index linked. This means the value of the gift will be maintained.

• Personal information – you may need to update personal information, contact details or even include instructions about digital assets, such as online and social media account login details.

• Change of mind – you are perfectly entitled to change your mind. You may decide that you would rather one particular friend or family member receive a gift than another. You may wish to change the Guardians you have appointed for your children. There might be a charity not previously mentioned which you would like to benefit.

The simplest way to change your Will is by making a Codicil but this is only suitable for relatively minor changes or additions.

If, for example, you have bought a new set of golf clubs that you would like to leave to your grandson, you could use a codicil for this. A codicil is an instruction that is added to your existing Will and you can change it in any way you wish. It is a legal document and must be signed and witnessed in the same way as your Will.

If you want to make more significant changes, we suggest you make a new Will.

Not every Will is equal. It’s very easy to make a mistake with a homemade Will, as there are certain strict legal formalities that must be complied with. A Will is an important document and it is worth taking a little trouble to get it right.

You should enlist the help of a professionally qualified expert such as Gill and Lane Solicitors who can provide advice for your particular circumstances.

Some studies have shown that that nearly one in two Australians don’t have a valid or legal Will. An out-of-date or non-existent Will can result in unnecessary financial hardship and emotional stress for surviving spouses, family and friends.

Many people often ask: ‘What makes a Will legal?’ or ‘What’s a valid Will’.

It’s important to realise that a Will can be valid or legal but still not meet your needs and wishes.

The laws governing the legal requirements for preparing a valid and legal Will vary from state to state, and country to country in general terms within Australia you must:

• Be at least 18 years old and understand what you are doing (have testamentary capacity)
• Ensure that your specific wishes are in writing
• Have the document signed in the presence of two witnesses.

You can see from these requirements that a Will can be valid but still be insufficient – it will depend on the Will drafting, contents and level of expertise of the person who created it.

Many people wonder if they can use a DIY (do it yourself) Will Kit but this can be risky.

A Will is one of the most important legal documents that you will make in your lifetime and it is worth taking a little trouble to get it right.

Having a valid, legal and high quality Will prepared is very simple and will secure your wishes for the future.

While many people try to save a few hundred dollars by using a DIY Will Kit, it may cost them or their loved ones more in the long run.

It’s very easy to make a mistake with a homemade Will, as there are certain strict legal formalities that must be complied with.

It’s not uncommon for a DIY Will to cost an Estate tens of thousands of dollars because the Will wasn’t drafted or executed properly.

While some of the mistakes can be fixed – many cannot.

Not every Will is equal. Some of the most common problems or pitfalls for do-it-yourself Wills include:

• The Will is not properly executed or witnessed
• Inappropriate Executors appointed
• Estate not disposed of properly due to the drafting of the Will
• Assets not properly accounted for in the Will
• Residuary Estate isn’t effectively disposed of resulting in Legislation determining the distribution of the remaining Estate
• Uncertain Terms of Will resulting in expensive Court action to determine the meaning of the Will
• Gifts not properly described or inappropriate conditions applied to them
• Superannuation and Family Trusts (which are not part of the Estate) not dealt with effectively
• Failure to consider Tax – this requires detailed knowledge of Tax and Succession laws
• Claims against the Estate not considered and protected against.

We often hear people say: “But my Will is really simple”.

A DIY Will kit caters for only the simplest of Wills (and even then can be problematic) but let’s face it, whose family and personal circumstances are simple these days?

Dealing with blended families, people you’d like to exclude from a Will, managing different types of assets or if you’re a business owner, requires a more complex Will and certain expertise and knowledge.

You need someone to help you cater for your unique personal circumstances.

There are many services available to help you with a Will, but you must be sure that the person attempting the task is not under qualified.

You should enlist the help of a professionally qualified expert such as Gill and Lane Solicitors who can help navigate any complexities you’re facing.

You should consult an expert such as Gill and Lane Solicitors and get a high quality and up-to-date Will before it’s too late.

If you die without leaving a Will you are said to die intestate.

We often hear, all too often, from grieving family members asking for help after their mum, dad, brother, sister or other loved one has died without a Will.

Some studies have shown that that nearly one in two Australians don’t have a valid Will. An out-of-date or non-existent Will can result in unnecessary financial hardship and emotional stress for surviving spouses, family and friends.

 If you die without leaving a Will you are said to die intestate, so there is no formal evidence of who you wanted as your beneficiaries and who you wanted as your Executor.

In this case your estate is distributed according to a pre-determined formula with certain family members receiving a defined percentage of your assets despite what you may have wished.

Although your family will receive some of your estate, the situation is more complicated and problematic than people realise. Your assets may end up in the ‘wrong hands’ or being allocated in a way you never expected or wanted.

We’re often asked what happens to a deceased’s assets when there isn’t a Will and who decideds what.

The estate is distributed according to a pre-determined formula with certain family members receiving a defined percentage of your assets despite what you may have wished.

Although your family will receive some of your estate, the situation is more complicated and problematic than people realise. Your assets may end up in the ‘wrong hands’ or being allocated in a way you never expected or wanted.

For example:

• If you’re married you may think your husband or wife will automatically get everything. In fact, this is only the case if your estate is under a certain value. Your children may have a right to part of your estate or, if you have no children then your parents, brothers and sisters who survive you may take a share.
• If you are living as a couple, but are not married, you may be treated as a single person and a surviving partner may get nothing.
• If you are a single person, you may want your estate divided in the proportions you wish among friends, relatives and charities of your choice. Even if you have no immediate family, it is still important to make a Will.

Without a Will, in certain circumstances your estate may simply pass to the Government and you will have had no say in where your money or possessions will go. For example, if you die intestate and have no surviving relatives closer than cousins, the State Government will receive your estate.

You should seek advice from a professionally qualified expert such as Gill & Lane Solicitors to help guide you through the Intestate process.

 Contact Gill and Lane Solicitors for an obligation-free consultation to discuss your particular circumstances and needs – we have significant experience in Wills and Estates including Intestate situations.

Spouses (including de factos), children (including step and adopted children) and some dependants (parents of the deceased person, the other parent of a child under 18 who is the child of the deceased person, or anyone under 18 who was dependant on the deceased person) can make a claim if they can show they were not adequately provided for in the Will.

In Queensland it is necessary to apply to the Supreme Court to challenge the Will. The court will take into account all the circumstances of your life, the size of the estate and the relationship between you and the deceased.

Time limits apply to these applications. Contact Gill and Lane Solicitors for advice on contesting or challenging a Will.