Ask LH: Do I Need A Lawyer To Make A Will?

Hi Lifehacker, what's the cheapest and easiest way around making a will? Can I just write down what I want to have done when I die and then have it signed by a witness or a JP? Or are lawyers needed no matter what? Thanks, Deadly Serious

Will picture from Shutterstock

Dear DS,

According to recent studies, around 50 per cent of Australians do not currently have a valid will. It's one of those things that people tend to put off so they don't have to sit around thinking about their fleeting mortality. Unfortunately, this outlook has the potential to come back and bite them in their cold, lifeless bums.

When you die intestate (a legal term for "without a will"), your estate and assets will be distributed according to a pre-determined formula. This means that a relative you hate could end up getting a slice of the pie, or even worse; the government.

To be considered a legally binding document, a will needs to pass certain criteria. Naturally, it must be in writing, include your signature and be dated at the time of signing. While a typed or printed will is the norm, handwriting is still acceptable.

In addition to your own signature, it must also be signed by two or more witnesses. It is strongly recommended that the witnesses are not named in the will, as this could compromise their entitlement in the event of a dispute. In other words, use non-relatives who have no ties to your beneficiaries. You can also request impartial witnesses from a professional will-making service such as the NSW Trustee & Guardian department.

You must also have "testamentary capacity". This involves more than being sound of mind; you need to know the full extent of your assets and fully understand the legal effect of the will. There are plenty of online resources that can help you in this area including sample wills to give you an idea of the preferred format.

You'll want to include physical assets such as a house, vehicles and jewellery, financial assets such as shares or bank savings and sentimental assets such as heirlooms and homemade gifts. Naturally, you should also make a note of any outstanding loans and other liabilities you have.

Once everything is fully mapped out, you need to appoint an executor who will be in charge of carrying out the terms of your will. This should be a trusted family member who is likely to outlive you. (Note: they need to be over 18.)

While it is possible to produce a will without involving lawyers or other professionals, the potential for it to be disputed is obviously higher. Also bear in mind that the law surrounding wills is slightly different in each state. In addition, certain life changes can void an existing will, such as divorcing your spouse. It's therefore essential to do plenty of research.

If you're paranoid about something going wrong or don't trust your relatives, you might want to purchase a will kit from a reputable provider. These are relatively affordable (especially compared to hiring a lawyer) and will provide step-by-step instructions complete with detailed templates.

Cheers Lifehacker

Have a question you want to put to Ask Lifehacker? Send it using our contact form.


Comments

    Yes, go ahead and make your own will/use a will kit - you will avoid paying a couple of hundred dollars to us lawyers now, but we will definitely get your entire estate later when your will gets challenged. And yes, it will get challenged.

      It depends on your family and circumstances. Being single with no current or former spouse or dependents and a family that on the whole gets on together very well, I can't see my will being challenged.

      On the other hand, I have a moral objection to paying money to a profession which seems to gain great satisfaction from fomenting dispute and dissent.

      Absolutely true. Legally, will kits are as sound as a leaky dinghy in a storm. As for using a state trustee, those with even a moderate estate will end up handing over many thousands in executor fees. For $500 you can get a solicitor to draw up a solid, legally binding will.

      Okay, I'll bite.

      On what grounds would you challenge an Australia Post will kit that has been completed by the deceased and witnessed by two non-beneficiary witnesses?

      And what is the key difference that you get by spending $250 to have basically the same template filled out by a qualified lawyer instead?

      No, it won't get challenged if everyone gets along. You're just concerned about your bottom line. All you lawyers are just money hungry.

    In NSW the Trustee and Guardian will draw up a will for free if you name them as executor. When you die the executor fees are charged on a sliding scale.

    Whatever you do avoid State trustees or similar organisations.
    They are a disaster and if you have any doubt simply google all the disputes and court cases for their incompetence.

    It doesn't need to be this complex. Here's an important addendum:

    So imagine, you're dead. Your spouse or eldest child is on the phone to the bank to try to get some of your cash to pay for your $10,000 funeral (or simply trying to stop your foxtel subscription). The bank is asking for a copy of the will as evidence that they are executor of the estate. If they have one, they take it to the bank and get on with inviting people to your funeral.

    If you don't, they spend a week or so with lawyers, judges etc, just so they can get a court order to act on your ex-behalf and cancel all your recurring bills, and pay for your funeral.

    If you are part of the 50% of the population who don't have a will, and you have a simple family structure (ie. one spouse, widowed or never married, all kids to one other person), and you just want your assets split up evenly amongst your immediate family - BUY A WILL KIT NOW, AND COMPLETE IT.

    Name someone in the family who is most trustworthy as your executor, split up your assets as you like in the will. Get it witnessed by two people.

    IF YOU DO NOT DO THIS, YOUR SPOUSE/NEXT OF KIN IS NOT AUTOMATICALLY THE EXECUTOR OF THE ESTATE. THEY NEED A COURT ORDER TO GET THIS.

    Everything the lawyers tell you to do is to protect you for "if the will gets challenged". If you have one family, and a net worth of less than $100k, I'm sorry, it's not going to get challenged.

    BUY A WILL KIT NOW, AND COMPLETE IT.
    Then, if you die, someone in your family (most likely your spouse) can quietly clean up your affairs and split up your assets, with a minimum of fuss.

      Perfect explanation. And a lawyer would of charged $$$ for that above sound advice. Proves my point that lawyers are money hungry.

      Thank you!
      this was my AskLH question.
      it's just not possible for me to hire a lawyer for a will for my lack of assets.
      im unemployed, with not a great outlook for employment, but married with no kids or house.
      thank you for the information :)

Join the discussion!

Trending Stories Right Now