Wills

Wills Brochure PDF download, 1,054 KB

This information is general and is not a substitute for legal advice. The Legal Services Commission provides free advice for most legal problems. Contact the Legal Helpline on 1300 366 424 or visit www.lsc.sa.gov.au or www.lawhandbook.sa.gov.au.

What is a will?

A will is a legal document that sets out who you want to inherit your estate (possessions and property) when you die.

To be valid in South Australia, your will:

• must be in writing (not oral)
• must be signed by you and witnessed by two adults (preferably two adults who are not mentioned in any other part of your will)
• must detail the distribution of your estate to your beneficiaries (the people who will get your property)
• should name an executor (the legal representative responsible for the administration of your estate). 

Who can make a will?

You can make a will if you are at least 18 years of age (or married) and you have legal capacity. In the context of making a will, legal capacity means that you understand the nature and effect of making the document and are able to communicate it. If you are under 18 years of age or you do not have legal capacity, you may still be able to make a will with the permission of the Supreme Court.

Why have a will?

If you die without a will it may be more difficult and expensive for your family to deal with your estate. It also means that you have no control over what happens to your property.

By having a will you give legal force to your wishes. This can help to ensure that your possessions and property go to the people you choose.

What happens if I do not have a will when I die?

Any assets held jointly automatically pass to the other owner(s). Assets in your name only are distributed according to the law of intestacy. 

Some examples:

1. A wife dies leaving a spouse and no children. Everything goes to her spouse.
    
2. A single, childless person dies, leaving both parents alive. The parents each inherit half of their child's estate.
    
3. A husband dies leaving a spouse and two children. He had a jointly owned house and $120,000 in the bank in his name only. The joint asset (house) goes automatically to the surviving owner (spouse). The first $100,000 goes to the surviving spouse plus personal belongings (his jewellery, furniture etc). The balance of $20,000 goes half to his spouse ($10,000) and half to his children in equal shares of $5,000.
    
4. A single father dies leaving one child. The estate is worth $100,000. Another child has already died leaving two children (grandchildren of deceased). Half of the $100,000 goes to the surviving child and the other half ($50,000) goes to the children of the deceased child (i.e. the grandchildren) in equal shares of $25,000.

What should I put in my will?

Your will should set out how your assets are to be distributed upon your death. You may also include your preferred funeral arrangements and nominated guardians for your children.

You may wish to explain why you have not left anything to someone who may be expecting to receive something. 

You should also consider your digital assets such as digital files, emails, and social media accounts. Some people keep a record of their digital assets including login details and passwords with their will so their executor can access their computer and online accounts.

Excluded assets

Any assets jointly owned with someone else (such as a house, car or bank account) pass automatically to the co-owner and cannot be distributed through your will. You cannot leave it to anyone else because legally it is not your sole property. By contrast, property held as 'tenants in common' (where each person owns an identifiable portion) forms part of your estate and can be included in your will.

Superannuation is not automatically part of your estate and is subject to the rules of the super fund. In most cases, you can make a binding nomination that your super is paid to your estate.

Who can be my executor?

Any adult with legal capacity may be an executor. You may choose a relative, a friend or a professional (including a trustee company). Your executor may also be a beneficiary under your will.

You may appoint more than one executor and ask that they work together to administer your estate. It is best to appoint an executor who is likely to survive your death.

If you appoint a professional as your executor, they are entitled to charge a fee for their services. If you appoint a relative or friend, they may seek assistance from a professional such as a lawyer to administer the estate. Professional fees will be charged against the estate.

How do I make a will?

A private lawyer can prepare a will and give advice about your estate. A will can cost anywhere from $300 to $3,000 or more. Prices can vary, so shop around and get quotes. 

The Public Trustee can prepare a will for free for eligible customers (such as concession card holders and those under administration or guardianship orders), but will charge a percentage of your estate to act as your executor. Some private trustee companies offer a similar services.

You can make your own will and do-it-yourself kits are also available but keep in mind that your will is an important legal document. If your will is not properly drafted and executed there may be additional legal costs to administer your estate. There is also a greater risk of someone successfully contesting your will, resulting in the distribution of your estate contrary to your wishes.

For peace of mind, it is best to have your will prepared professionally.

What happens when I die?

It is the executor’s job to carry out your wishes as stated in your will, including any funeral arrangements. If your estate includes a large sum of money, or land in your name only, it may be necessary for your executor to apply for probate in the Supreme Court. Probate is the official court declaration that a will is to be treated as valid and binding.

Your executor must pay your debts from your estate (such as funeral expenses, mortgages, personal loans and bills). Beneficiaries will only receive something after all debts are paid. If you die and there is not enough money to pay all your debts, your funeral and executor’s expenses are paid before other debts. Your executor and your beneficiaries do not have to pay your debts out of their own finances. 

Contesting a will

A will may be contested for several reasons. Someone may believe your will is unfair and does not adequately provide for them. If they decide to contest your will after your death, they will have to show the court that you failed to provide for their proper maintenance. The court has wide powers to examine all of the circumstances including your relationship with the person contesting and whether they helped look after you.

Someone may also seek to challenge the validity of your will. They may argue that you did not have legal capacity when you made the will, that you were pressured by a third party, or that the content of your will is unclear.

The law in this area is complicated. If someone believes they may have a claim they will need legal advice as soon as possible. A claim must be made within 6 months of the grant of probate. The court may extend this time if the estate has not been completely administered.

Can I stop someone contesting my will?

You cannot stop someone from attempting to contest your will after you have died. However, if you have your will professionally prepared by a lawyer it will reduce the likelihood of a successful challenge.

Be sure to explain all the details of your estate and your family circumstances to your lawyer so that everything can be taken into account and made clear.

It may also be useful to explain the reasons why you have decided to distribute your estate in a particular way and why particular people have or have not been left something. 

Updating a will

If you want to make small changes to your will you can make a codicil, which is a change or addition to the original document. There are legal requirements that apply to changing your will and you may need to get professional assistance to prepare a codicil.

Significant life events can affect the validity of your will. Marriage, for example, automatically revokes (cancels) an existing will.

If there is a significant change in your circumstances, such as marriage, divorce, the birth of a child, the death of a partner or the death of an executor or beneficiary, it is best to make a whole new will. This can make your wishes absolutely clear and avoid uncertainty in the future. Making a new will automatically revokes your previous will.

It is best to get professional legal advice and assistance if you have a will and you marry, separate, divorce or remarry.

4 December 2023