Preparing a Will and an estate plan requires much thought and planning.

Below are 10 things to think about before writing a Will.

1. Choosing an Executor

The choice of Executor is one of the most important decisions when making a Will and requires balancing a range of considerations. 

The Executor is a person (or persons) appointed by a Will to manage the estate and carry out the wishes set out in the Will. It is a position of great trust and responsibility.

A person appointed as Executor in a Will can refuse to accept the role. You should satisfy yourself that any person you name as Executor in your Will is willing to accept the role. This may involve checking with the person prior to naming them.

It is possible and advisable to appoint substitute and multiple Executors who can act in the role if the first choice Executor is unable or unwilling to act at the relevant time.

It is common for family members, friends, and beneficiaries to act as Executors. In many cases, this is entirely appropriate. It is important though to consider the potential for conflicts of interest, family relationships, personalities, expertise, and ages. The public trustee can be appointed to act as Executor if an independent and impartial executor is required.

2. Consider the Estate

It is important to consider the nature, extent and value of the estate the Will is being made in relation to. It may be useful to make a list of the assets and liabilities and their estimated values. This information may also assist your Executor in due course.

It is necessary to also consider whether assets and liabilities are held solely or jointly or in trust. The manner of holding may affect whether the Will can deal with the assets or liabilities.

3. Assets & Cherished Belongings

Be mindful of all your assets while writing your Will. Some may not have much material worth but may hold immense personal or emotional value. Do you have any particular gift or cherished item you’d like to bequeath to a particular family member? You may wish to make a list of how you’d like your assets to be distributed, and to whom.

4. Identify the Beneficiaries

Beneficiaries are the people, charities, and/or organisations who benefit from your Will. They may receive specific items or amounts, or portions or percentages in your residuary estate. The residuary estate is the remnant of your estate after paying debts, funeral, and testamentary expenses and after distribution of any specific items or amounts.

An individual of any age can be a beneficiary. If a minor such as a child is listed as a beneficiary, your Executor or such other trustee for the child you appoint, will be responsible for overseeing the proper administration of the assets to the minor beneficiary, as per the terms of the Will which may include a trust for the minor beneficiary.

When recording the beneficiaries in the Will, it is important to provide their legal names and other identifying details. 

5. Beneficiary Specific Needs

Some beneficiaries may be children under the age of 18 or may have other special needs due to a disability or other reasons. For these beneficiaries, special arrangements and considerations may be required. A testamentary trust may be a worthy consideration.

It is also important to consider who may have a claim upon the estate. In Australia, there is family provision legislation that allows eligible claimants, usually close family members, to make a claim against the estate if the Will fails to make adequate provision for them.

6. Guardianship of Children

If you have a child or children under the age of 18, it is wise to appoint a Guardian for them in your Will. 

The role of the Guardian is to care for them in the event of your premature death. The Guardian may be a family member or friend. 

When appointing a Guardian for your minor children, keep the following points in mind:

  • Your child’s bond and relationship with the prospective guardian;
  • The guardian’s marital status and family situation;
  • The physical, financial, and emotional health of the guardian; and
  • The religious beliefs and cultural values of the guardian.

The Will can also include directions to the Guardian regarding the upbringing of any child or children. For example, you may include directions about schooling, religion, culture or important family relationship preferences.

7. Funeral Instructions

You may want to include funeral instructions or preferences in your Will. For example, you may have a preference as to whether you are buried or cremated. 

You may have other funeral related wishes you would like known and followed. For example, you may have preferences about where you are buried, how your ashes are dealt with, where any funeral is conducted and who officiates it. 

This provides important information to your family and others about your wishes. It may also be beneficial to speak to others about your wishes separate to the Will although having them in the Will assists to record and confirm them.

You may also want to express your desire to be an organ donor in your Will. If wishing to be an organ donor, you may consider officially registering at the Australian Government’s Donate Life website accessible here.                                                                                                 

8. Signing the Will

In Australia, a Will is generally not valid if it has not been signed by the Will-maker in the presence of two witnesses. Witnesses must be above 18 years of age and mentally and visually sound. It is important Wills are signed in accordance with requirements. There is otherwise risks of an invalid Will. This may lead to cost and dispute for the estate in order to have the Will admitted to probate and followed.

9. Storing the Will

Your Will is an important document. The original Will should be stored in a safe and secure location. It is common for lawyers to store original Wills for clients. 

Your Will is a private and confidential document. You do not need to provide a copy to anyone. It may be worthwhile ensuring your family or your executor has an awareness of where your Will is stored.

10. Seek Professional Advice and Assistance

Professional advice should be sought in relation to the Will and the estate plan to ensure the validity of the Will and a proper consideration of all relevant matters including laws and taxes.

Your Will should be clear and easy to understand and not have any conflicting or uncertain provisions. There is otherwise risk of it not being understood and followed or costly disputes arising about how it should be interpreted. Professional drafting and assistance will assist to protect from these risks.

Contact Us

McMahon Fearnley’s experienced Will and Estate Lawyers can provide you with important Will and estate planning advice and can prepare a Will for you that reflects your wishes and intentions. We can also assist with Powers of Attorney and Probate and Estate Administration services. Additionally, our team of Will Dispute Lawyers can provide professional advice about contesting a Will, including on validity or family provision grounds, and can act for executors or beneficiaries or family members in taking legal action.

If you have any questions or need assistance in preparing your Will, we are here to help. Get in touch with us today to enshrine your wishes in your Will with peace of mind.

McMahon Fearnley

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