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 pays a spouse, then children, then other relatives. That order may not match what you would have chosen, and it cannot honour informal promises or arrangements you believed were understood.

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 and who are not beneficiaries. 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, is one of the most common causes of estate disputes in Australia, because small errors in wording or witnessing can make a will invalid or open it to challenge.

A solicitor who specialises in estate planning will usually prepare a will for a few hundred dollars. Set against the tens of thousands a contested estate can cost, and the distress it causes a grieving family, the solicitor is well worth it. Community legal centres and the Public Trustee in each state offer lower-cost or free options for 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.

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