What is a Will? Everything You Need to Know

What is a will?

will (also known as a testament) is a legal document that expresses a person’s wishes as to how their property (or estate) is to be distributed after their death and as to which person is to manage the property until its final distribution.

Wills and estate planning lawyers are typically hired to create wills, as these are legal documents in the eyes of the law.

Do I need a will?

In short, yes. Your will is an incredibly important legal document that stipulates who is to receive your assets upon your death. Not having a clearly defined will can significantly increase the chance of will disputes. Learn what happens if you die without a will in Western Australia.

When is a will invalid?

There are many instances in which a will may be invalid. It may not have been executed correctly. For example, the will-maker may not have signed the will or signed it in the presence of two adult witnesses. This may or may not prove fatal to the will.

It may be established that the will-maker did not have capacity at the time he or she signed the will or that the will-maker had not read and approved the contents of the will prior to its execution. The will may have been created by fraud or unconscionable conduct. It may have been statutorily revoked by marriage or divorce. Alternatively, it may simply have been superseded by a later will.

What happens to my assets if I die without a will?

If you die without a will you are said to have died intestate. If you die without leaving a valid will in Western Australia, your estate will be distributed in accordance with the provisions of a statutory will which is set out in section 14 of the Administration Act 1903 (WA).

When should I write a will?

In Western Australia, anyone over 18 can write a will. It is never too early to write a will.

Should I instruct a lawyer to prepare my will?

In short, yes. Wills are complex documents and if you make a mistake it may invalidate your will.

How much does a lawyer charge to prepare a will?

In most instances, a lawyer will charge somewhere in the vicinity of $300 to $1,000 plus GST to prepare a standard will. A standard will would be one leaving assets to a spouse and then to children. If your financial affairs are more complicated then the fee is likely to be higher.

Can I write my own will?

Yes, you can write your own will and there are many products online including will kits that you can download to assist you in preparing a will.

That being said, it would always be prudent to use the services of an experienced succession lawyer to prepare your will particularly if you have significant assets and/or a family where it is important that your testamentary wishes are actually carried into effect upon your death.

What is an executor?

An executor is a person nominated by the will-maker to carry out the will maker’s testamentary wishes.

What is the role of an executor?

The executor is responsible for the funeral arrangements, locating the original will, gathering up the assets, paying any debts and distributing the estate in accordance with the terms of the will.

The executor is also responsible for preparing and lodging individual and estate tax returns and obtaining a tax clearance from the Australian Taxation Office.

Who can witness a will?

A will must be signed in the presence of two adult witnesses who should each state their full name, address and occupation on the signing page. In Western Australia a person who is unable to see and attest that the will-maker has signed a document cannot act as a witness to a will.

It is good practice that the witnesses are independent from the will-maker. For example, beneficiaries, potential beneficiaries and relatives should not act as witnesses to the will. 

How many witnesses do I need when I sign my will?

In Western Australia a valid will requires the will maker to make or acknowledge his or her signature on the will in the presence of at least 2 adult witnesses present at the same time who then sign the will in the will maker’s presence.

Can a spouse witness me sign a will?

A spouse should not act as a witness to your will.

Can I appoint a guardian for my children in my will?

In Western Australia a person may, by his or her will, appoint a guardian of any infant child or children of the person.

What is a grant of probate?

A grant of probate is an order of the Supreme Court of Western Australia certifying the validity of the last will of a deceased person and acts as the formal authority for the executor named in the will to deal with the administration of the estate. 

What is a grant of letters of administration?

A grant of letters of administration is an order of the Supreme Court of Western Australia formally authorising a person over the age of 18 to deal with the administration of the deceased estate of a person who died intestate (without a will).