Who can make a Will?
Anyone over 18 with legal capacity. ‘Legal capacity’ means:
- you’re of sound mind
- you know what a Will is
- you know what a Will does.
If you’re under 18, you can make a Will if you’re married, or with the court’s consent.
When should I write or update my Will?
You should update or change your Will after major life events, such as:
- marriage or divorce
- buying or selling a home or business
- having a child
- changing who will benefit from your Will
- changing who will execute your Will
- changing who will be guardian of your minor children.
What does an Executor of a Will do?
An Executor is the person or organisation you choose to be responsible for carrying out the wishes in your Will.
Your Executor makes sure your estate is dealt with the way you want. This can be complex, even with simple estates.
Your Executor will need to:
- identify all your assets and liabilities
- apply for probate
- protect your assets
- complete conveyancing
- prepare tax returns for you and your estate
- defend your estate from legal claims
- mediate and resolve disputes between beneficiaries, and
- distribute the proceeds of your estate.
What is a beneficiary?
A beneficiary is a person or other legal entity, for example a charity, who receives a gift or benefit from your estate.
What does it mean to 'die intestate'?
Dying 'intestate' is when a person has died without a valid Will. State Intestacy Law then gets to say how your estate will be distributed, using a set formula.
If you don't have a Will:
- you have no say about who benefits when you die. For example, your assets can be given to someone you don't want to have them.
- you have no say in who makes final, important decisions about your estate
- the costs to settle your estate may be more than if you'd made a Will
Whatever the size of your estate, someone has to administer it. This will either fall to the Executor you nominate or, if you die intestate, to one of your next-of-kin. This is usually the person with the largest claim to your estate.
How is a Will revoked or cancelled?
Different rules apply in each state. In Victoria, a Will can be revoked or cancelled by:
- creating a newer Will
- burning, tearing or destroying the Will
- getting married or divorced.
Where should I store a Will?
The Victorian Will and Powers of Attorney registry (External link) (External link) (External link) is a safe place to store your will and Powers of Attorney documents. It's free for anyone living in Victoria.
You can store your:
- Will
- General Non-Enduring Power of Attorney
- Enduring Power of Attorney
- Medical Treatment Decision Maker
- Supportive Attorney
Using the registry means your Executor will always know where to find your important documents. Learn more about Powers of Attorney (External link) (External link) (External link).
