Frequently Asked Questions
A Will is a document in which you explain what you want done with the assets that you own solely in your own name when you die. These assets typically consist of real estate, bank accounts, cash money, investments, cars and personal or household belongings that you own. A Will ensures that your testamentary wishes are carried out upon your death and your hard earned wealth goes to the people you want it to go to.
Although a Will can seem simple, it’s really a complex legal document. To make a legally binding will there are many legal requirements that must be met and the wording in the will is very important – drafting your own will is dangerous and not worth the risk of leaving your family and loved ones with a mess after you have gone.
The formal requirements for making a valid Will as as follows:
1. The Will must be in writing.
2. The Will must be signed by the Testator/Testratrix on each page of the Will and at the end of the Will.
3. The Testator’s signature must be witnessed by two independent witnesses. A beneficiary cannot witness a Will.
4. The Witness must sign the Will in the presence of the Testator and each other.
If a person dies without a Will, the law sets out how their estate will be shared out after all the debts have been paid, i.e. without a Will, you have no direct say over how your estate is distributed after your death. Without a Will it can be hard to work out who should apply for permission to deal with the deceased’s estate. The spouse, de factor partner or next of kin need to apply to the PROBATE OFFICE OF THE SUPREME COURT for Letters of Administration. The application is complicated and expensive. If the application is successful the courts grants Letters of Administration to someone who then has the authority to deal with the estate.
The executor deals directly with your estate; he or she pays your debts and divides what remains of your estate among the “beneficiaries”, the people named in your Will to receive a share of your estate. The executor has a big job. Being an executor is a very solemn undertaking and responsibility. Speaking generally:
1. An executor must answer to the beneficiaries for his or her management of the estate and account for the property (including all money) of the deceased.
2. He or she must organize your funeral and burial, as well as making decisions about your personal belongings and property.
3. It is also their job to deal with your finances, such as paying your debits, closing your bank accounts and doing your taxes in the year of your death, and the year following your death for your estate.
4. Finally, if there are children under 18, their well being must be looked after. You should choose an executor that you trust and who is likely to still be alive when you die. He or she may be a trusted family member or friend. It helps if he or she is a good book-keeper and an efficient communicator. If you prefer, you can appoint more than one executor and both can act together as co-executors. You should also appoint an alternate executor if the first executor isn’t able to act. If you have a complex estate or investments or need someone to take over the operation of a company, you should name a professional executor.
Birth or death of children, grandchildren or other close relatives, or other changes in your family circumstances.
- Significant changes to the value of your assets.
- Substantial changes to the manner in which you own assets, including the formation of a family trust or the establishment of a self managed superannuation fund.
- If you enter into a new business or change your existing business structure.
- Changes in your residency status or of any of your intended beneficiaries.
- Retirement from full time employment.
In recent years, there have been significant and continuous changes to the taxation, superannuation and social security laws impacting upon wills and deceased estates. These changes emphasise the importance of regularly reviewing your will to ensure it continues to comply with your wishes.
Typically, a guardian will be appointed to look after your children if they are younger than 18 when you die. This will avoid confusion in your extended family as to who should care for your children if both you and the other parent die before the children become adults. You must make sure your will allows the executor to pay funds to the guardian for the expenses of raising and educating the children.
If your Will doesn’t properly provide for your spouse or de-facto spouse, or children or parent, they may be able to make a claim under the Inheritance Act (WA). If successful, the WA Supreme Court has the power to change your Will to give them a share of your estate. Therefore, if you intend excluding any such dependents from your Will, or giving them less than they might reasonably expect, be sure to consult with a lawyer about this situation. An experience Wills lawyer can advise you on how to avoid claims on your estate under the Inheritance Act (WA).
If you Marry or Divorce, your Will is automatically revoked and you will need to make a new Will unless, for example, the Will says that it was made in contemplation of your new marriage or divorce.
We recommend the free government run storage facility called “Wills Bank”.
To store your will at Wills Bank you must complete the deposit form – you can click here to down load the form deposit form
Alternatively, you can store your original Will in a secure safe place, like a safe or safety deposit box, where it cannot be stolen, altered or destroyed.
Probate is the process by which the executor must apply to the Supreme Courts of WA to confirm that a Will is legally valid; it is the process of proving and registering in the Supreme Court the last Will of a deceased person. It is usually the executor of your Will who administers the estate and handles the disposal of your assets and debts. In order to get authority to do this, they usually need to obtain a legal document called a Grant of Probate. For assistance with the process of obtaining a Grant of Probate, it is usually helpful to consult a specialist Wills and Probate lawyer. Details about Probate, including filing fees, can be found at the website of THE SUPREME COURT OF WESTERN AUSTRALIA.