Frequently Asked Questions

A Will is a legal direction by you which is legally enforceable as to how your assets are to be distributed upon your death.
It must:
  1. be in writing
  2. be signed and dated
  3. be witnessed by two (2) witnesses (important - not being beneficiaries or potential beneficiaries)
  4. you must be 18+ years and of sound mind
  5. it must give away your assets
  6. it should give something to all your family to avoid claims someone was left out
Should you not leave a valid Will then your assets are dealt with under rules of law. This process will cause unnecessary costs, delay and financial distress to any dependant survivors and generally will not be what you intend and is different in various states.
This is where a couple each leaves their estate to the other and when the last partner dies then the remaining estate goes to the children or such other persons as may be directed. These Wills generally have the same beneficiaries and gifts.
Executors nominated to administer an estate can be beneficiaries or other responsible persons. We generally recommend husband and wife appoint each other and then they each appoint (the same) two (2) executors to act when both are dead. Two (2) executors are recommended as they tend to keep each other on track and ensure the right thing is done.
We do not advise appointing trustee companies as executors unless there is a complicated trust to be set up or perhaps where there are no responsible relatives, friends or professionals available. If so get a professional Will prepared by a lawyer. Trustee companies charge a commission (on top of all costs being legal fees for probate, sale costs and the like) so there can be a significant cost to the estate if an executor trustee company is appointed.
Marriage automatically voids any then existing Will in Australia. If you do not have a new Will after your marriage then you would die "intestate" (that is without a Will - even if you had a valid Will previous to your marriage).
If you are married and then divorce then any gifts in a Will made prior to the divorce in some states to a named husband or wife (ex) is not effective and the estate can be partly gifted only. Ensure you do a new Will after divorce.
We recommend that all people have an Enduring Power of Attorney prepared in conjunction with their Wills.

An Enduring Power of Attorney is different from a general or limited appointment as an enduring appointment will continue even if you become incapacitated.

The appointments are specifically designed so that your husband/wife, partner or family can manage your financial affairs if something happened to you. You can nominate who is to be your attorney and they can take over and assist in running your affairs if you become ill, incapacitated or otherwise are away and wish them to act. The appointment can be withdrawn if you have the capacity to do so. The usual arrangements for a married couple is from husband to wife and from wife to husband with an additional clause that if you both become impaired or incapacitated then another person acts as Attorney. It may be appropriate to appoint for instance the same person/s as you appoint as executors under your Will.

If you do not have an Enduring Power of Attorney and you became ill or incapacitated then normally you would become a protected person and the Public Trustee (or some other government body) would be appointed to administer and conduct your affairs. This is unnecessarily time consuming, costly, inconvenient and impersonal. Enduring Powers of Attorney are simple and inexpensive and we recommend you consider them as part of your estate planning and personal arrangements. You can get one prepared by a lawyer or go to www.elawpublishing.com.au to buy one.

Various states now have special appointments for personal affairs (not financial). Whereas an Enduring Power of Attorney refers to the management of a person's financial and legal affairs an Enduring Power of Guardianship gives the power to the person/s you may appoint to make decisions about the personal aspects of your life (non-financial) if you were unable to manage your affairs. Generally however, both forms of attorney (Guardianship and/or Enduring) are activated if and when the person who made them becomes mentally or physically incapacitated.

An Enduring Power of Guardianship can cover both, the power to consent or refuse medical treatment as well as the broader decisions about the personal aspects of life such as where you are to live, who you wish to associate with and how your life is to be conducted if you are unable to make your own decisions.

Get legal advice (see our referral contact on this site) or contact your lawyer or the Law Society in your state. Forms may be found at www.elawpublishing.com.au

In contrast, a Medical Power of Attorney is a document that appoints a medical agent to deal with the consent or refusal of medical treatments for you. You can appoint an agent or an attorney and leave directions to them as to the medical treatments you may or may not wish to have in case you may not be able to do so at some time in the future. You do not need to appoint a medical attorney. In some states you can leave directions to treating medical staff as to the nature and manner of any treatments in the separate form of a medical direction such as in the case in South Australia (and some other states) under the Act Consent to Medical Treatment and Palliative Care Act, 1995 (SA). Similar legislation is in other states, see a lawyer or try www.elawpublishing.com.au for any forms.

There is a minimum gift defaulting to $500 on the online Wills but none in the Will kit you can download.
This is up to the executors but by law they are obliged to carry out your wishes. Always appoint two executors or appoint an executor company.
You can only leave multiple gifts in the Will kit which you can download.
Then you will need to use the Will kit and it will allow non-member charities to be named. The online kit will only allow one (1) charity to be named for gifts.
Then the executors can ask that a court allow the gift be given to a similar charity. This is unlikely to occur if you chose a large established charity.