What is a Will?
Your Will is a legal document setting out how your assets will be distributed when you pass away. Everyone over the age of 18 can and should have one in place.
It can also cover things like:
- naming who will benefit from your estate (called the beneficiaries) and what you’d like them to have
- choosing who gets personal or family items or other property you might have
- what happens to things like life insurances or other investments
- sharing any wishes for your funeral
- naming a legal guardian for your children if they're under 18
- picking someone to administer your Will (called the executor) after you pass away
- naming who will look after your pets.
What happens if you die without a Will in place?
If you die without a will, it is known as dying ‘intestate’. In this situation the law determines who will benefit from your estate. The law follows a line of relationship for those who benefit starting with your spouse and children. The line of relationship can go right down to first cousins.
If you want to make sure you get to determine who benefits from your estate, having a Will means that your wishes are legally documented and must be followed.
Real-world example—James was born in New Zealand and immigrated to Australia
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James lived in a de facto relationship with his partner, Karen, for over 20 years. He helped raise Karen’s children from a previous relationship. These children lived with him until they were adults. Karen died before James and in her Will she left him her estate. James continued the close relationship he shared with Karen’s children for many years. When James died without a Will, Karen’s children did not receive any of his estate, including the family home where they had lived their entire lives. James’s estate was given to a brother living in New Zealand.
Ways to make your Will
You can choose to make your Will:
- With qualified professionals
- a solicitor or lawyer can help you with this. You can find a list of solicitors if you don’t already know of one.
- Queensland Public Trustee provide a free service to help you make your Will. Find out more about how we can help.
- Self-made Wills—You can purchase a Will kit from a newsagent, Post Office or download one from the internet. It’s important to complete these very carefully as the wording or terms used in self-made Wills might not achieve the outcomes you want. See the FAQs about making your own Will.
Things to consider in your Will
You can pick someone or an organisation to follow and carry out the instructions in your Will after you’re gone. This person can be a family member, a trusted family friend or an independent person or organisation such as a solicitor or trustee. You can find out more about the things to consider when choosing someone to be your executor and about what the executor will need to do to administer the estate.
Your assets include everything you own, such as physical things like your house, vehicles, furniture, clothing and jewellery. It can also include your monetary assets like superannuation, life insurance policies, shares and your bank accounts. You should also consider things like the ‘digital’ assets you store and access on your phone and laptop, for example photos, social media accounts, crypto currency. Find out more information about digital assets.
You may want to consider items with high monetary or sentimental value individually to ensure they go to precisely who you wish. You can make a specific gift of these items in your Will. For example, leaving your vehicle to one of your children.
Gifts in Wills can also be made to a specific cause, organisation or charity that you are interested in. It can also be referred to as a bequest and you can choose to leave more than one in your Will if you are passionate about several causes. The gift is not always monetary, and some people gift the profit from the sale of a property or the contents of their house for a charity. Find out more about Charitable Trusts we work with.
If you have children or dependents under the age of 18 you can nominate someone to be the legal guardian of the children until they reach the age of 18. This can be a family member or friend, who you trust to make decisions about things like their finances, education, health and lifestyle. A legal guardian is also not necessarily the person you want the child to live with. For example, a grandparent living in a retirement home can be the legal guardian but not who you decide the children should live with.
You can nominate someone to take care of your pets after you are gone.
You can set up trusts in your Will for a variety of reasons. For example, you may set up a trust for a child, someone with a disability, or to allow a family member to reside in your home after you pass away. Find out more about trusts.
Making a Will with Queensland Public Trustee
Find out more about how we can help, the steps involved and what you need to do to prepare for an appointment with us.
Things to consider when choosing an executor
It’s a good idea to consider these points when choosing an executor:
- Does your executor have the necessary skills, and are they willing and able to administer your estate? And are they likely to be there when needed?
- If you appoint a family member or loved one, they might also be going through a difficult time with stress and grief.
- Will your choice of executor cause conflict among your beneficiaries? For example, if you choose the eldest sibling to be executor, could this cause additional tension among the siblings after you’ve gone?
- If something goes wrong with the administration of your estate (for example, if property is damaged and not adequately insured), your executor may be personally liable.
Times in life to consider updating or changing your Will
Life is busy and ever changing. It is important to keep in mind that as life changes, your wishes for after you are gone might change too. Some life changes where you should consider updating your Will are:
- relationship changes such as marriage, divorce or entering or leaving a de facto relationship
- the passing of a loved one
- coming into an inheritance
- major changes in your financial situation such as losing a job or retiring
- buying, selling or renting your property
- starting or closing your own business, or changes in a business partnership
- the onset or recovery from a major illness
- travelling or relocating interstate or overseas
- changing your mind about the people or things you originally included
- the planned executor or guardian is no longer in your life
- receiving major assets (for example, valuable jewellery) that you did not include.
If you have made your Will with us, then you can contact us on 1300 360 044 or book another appointment online
View About Wills with Queensland Public Trustee video transcript
Glossary of terms
Use our glossary to look up any terms or legal wording that you are unsure of so that you are clear on the terminology and can understand the wording used by solicitors, in Will kits or on our website.
Frequently asked questions
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A beneficiary is a person or an organisation such as charity who is named in your Will to receive a gift or benefit from your estate. This could be in the form of money or your things such as sentimental items or something like a property that you own.
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A Will is still valid without an executor. However, we recommend having an executor as they will oversee that your Will is carried out in line with your wishes. You can find out more about the role of an executor here.
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In Queensland, a Will must be in writing, signed and dated in the presence of two witnesses over 18 years of age. A witness should not be someone who benefits from your Will.
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Yes, a Will can be cancelled when it is replaced by a new Will. The new Will should have a statement which cancels all previous Wills. You can cancel a Will by completing a document which states that you cancel the Will. This document should be signed and witnessed like a Will. If you just cancel it, you won’t have a current Will, so it is best to complete a new Will before cancelling any previous ones.
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A Will can be cancelled completely or partly when your circumstances change such as getting married or divorced. In either of these situations, you should consider changing or updating your Will. Find out more about when you should consider changing or updating your Will.
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If your circumstances change, you should make a new Will. You should not write those changes on your original Will document. Any alterations or writing on the Will document can cause problems when you pass away.