How to make a will

What does a will actually do?

A will sets out how your assets are to be distributed, and names an executor, the person responsible for carrying out your wishes. It can also name guardians for any children under 18.

Without a valid will, your estate is distributed under your state's intestacy rules, a statutory order that generally favours a spouse or partner and children first, then other relatives. How it is shared differs between states. That order may not match what you would have chosen, and it cannot honour informal promises or arrangements you believed were understood. If the people closest to you are not a partner or a relative, that order can leave them out entirely, which is covered in when the people closest to you are not your legal family.

What makes a will valid?

A valid will must be in writing, signed by you, and witnessed by two people who are present at the same time. It is safest not to ask anyone who benefits under the will to be a witness, because in some states that can put their gift at risk. The rules are largely consistent across Australia, though each state has its own legislation.

You also need testamentary capacity at the time you make it. That means you understand that you are making a will, you know roughly what you own, you understand who might reasonably expect to benefit, and you can weigh those claims. Capacity is assessed at the moment the will is made, which is another reason not to delay.

What should be in it?

At a minimum, a will should name your executor, list who receives what, and name a guardian for any young children. It is also worth naming a backup executor and backup beneficiaries in case someone named has died.

Think about assets that pass outside the will, too. Superannuation and jointly owned property generally do not form part of your estate and are not controlled by your will, so they need to be dealt with separately through nominations and ownership arrangements.

Should I write my own will or use a solicitor?

Many people choose to use a solicitor. A do-it-yourself will, from a kit or a template, can go wrong in small ways, and errors in wording or witnessing can make a will invalid or open it to challenge.

Most solicitors who specialise in estate planning will give you a fixed quote for a will, so ask for one before you start. A contested estate can cost a great deal and cause a grieving family real distress. The Public Trustee in each state offers will-making, and community legal centres may be able to help people on limited incomes.

What if a document does not meet all the formal rules?

Most states now allow a court to recognise an informal document, such as an unsigned draft or a note, if it is satisfied the document genuinely sets out the person's intentions. This is a safety net, not a plan. It involves a court application and is no substitute for a properly made will.

When should an existing will be reviewed?

Review an existing will after any major life change. In most states marriage automatically revokes a will, and divorce can change it. The birth of children, a significant change in assets, or the death of a named executor are all reasons to update. Bring any existing documents to your solicitor and let them advise on what needs to change.

If you are helping them make a will

Making the will is up to them. What you can do is the practical side: book the appointment, get them there while they are well enough, and find whatever papers the solicitor asks for (bank and super statements, any old will).

If you might inherit anything, step out of the room when they give their instructions, and again when they sign. A good solicitor will ask you to anyway. A will made with a beneficiary in the room is easier to challenge later, however well meant.

If you are the executor, ask where they will keep the original. People lose weeks looking for it.

This is general information only. For your situation, speak with a solicitor admitted in your state.