Wills

+ What information goes in a Will?

A typical Will details:

• Who is your Will executor –the name of the person responsible for making sure the directions in your Will are carried out
• All your asset information – such as property, personal belongings, savings, bank accounts, shares
• Who will be receiving your assets (the names and details of your beneficiaries)
• Testamentary Trusts – a special trust that is detailed in your Will, that protects the assets placed into it, on behalf of beneficiaries
• Who is to be the legal guardian of any applicable dependents
• What should happen if something happens to someone you name in your Will – so how will assets be divided or who else can care for children
• What funeral arrangements you would like, if you wish to specify something particular

+ What happens if I don’t have a Will?

Your Will ensures your assets are distributed in exactly the way you would like. In Australia, if you die and do not have a Will – or a legally valid Will - your death is what’s called ‘intestate’.

Intestate rules differ depending on which state you live. In New South Wales, the Supreme Court would appoint an administrator to handle your assets and arrange your funeral. We would establish who is your next of kin, tracing relatives if necessary, and distribute your assets.

It can get complex if you have children from previous relationships, or a de-facto partner who has to prove their relationship with you. Or if you have assets abroad. This is when estate disputes can commonly arise.

In NSW, there are detailed Laws of Intestacy, which govern distribution of estates for those who die without a Will.

+ Can I do my own Will?

It is always advised to get your Will properly and legally drafted. Because the laws around Wills and estates is complex, the risk of a DIY Will is that it won’t be legally valid and open to misinterpretation and confusion as to your wishes.

This would mean all your wishes – no matter how well intended – do not legally need to be carried out. Plus it’s vital to get the right legal advice for your unique circumstances, to help prevent estate confusion or disputes in future for your beneficiaries, that can be costly for your family to resolve.

At Betar Lawyers we can draft up a Will that legally outlines all your wishes, so you have complete peace of mind that you have your affairs in order including care for your dependents. We can draft a Will as a stand-alone document, or as part of a comprehensive estate plan. Your estate plan covers things that come into force when you are alive, such as your healthcare and financial wishes, if you can’t make decisions for yourself.

If you’re not sure what sort of estate planning you need, our friendly team is available to help. Just call us on (02) 9279 1100.

+ Are online or video Wills valid?

The NSW Supreme Court recently considered a case involving a video Will (estate of Wai Fun CHAN, deceased 2015). It was eventually accepted as a ‘document’ and therefore an ‘informal Will’. But resolving the legal validity came with considerable costs and delays for the beneficiaries.

All of this could have been avoided if the proper legal steps had been followed. There is no guarantee of course that the video you produce will be accepted as a ‘document’ and an informal Will by a Judge. So, because of the risks, a video alone should never be a replacement for a legal Will.

There’s nothing stopping you from doing a video to accompany your Will, however. You can clarify any aspects of your Will for loved ones and leave personal messages.

+ Where should I keep my Will?

It’s a given that your Will should be kept in a safe and secure place. But you also need to make sure you tell someone it is there! It is no use if your named executor or a close trusted family member does not know where to find it. The Supreme Court of NSW has a service for depositing Wills in safe custody. We can also store your Will electronically at our offices.

+ When should I change my Will?

Anything that affects your assets or care of children – such as marriage, divorce or birth of a new baby – will mean that your Will needs updating. If you aren’t sure if your Will needs to be changed, call us for quick and professional legal advice on (02) 9279 1100.

+ Should I discuss my wishes with family before preparing or changing my Will?

Yes, it’s always a good idea to talk through your Will with the family members who it affects. If you have specific wishes – particularly involving who is to care for children – it is sensible to raise this with the person involved, so there are no surprises and they are aware of possible future responsibilities. This can be especially important if, for instance, the legal guardian you want for your children lives overseas.

Having these types of conversations is not always easy, but it’s important that everyone understands your thinking and how your Will may affect them. It’s also a good opportunity to iron out any issues around distribution of your assets, whilst you are still around. This will greatly avoid any beneficiaries contesting your estate and save money.

+ Do I need an estate plan and a Will?

The difference between an estate plan and a Will is that an estate plan covers much more than just what happens after you die. It covers what happens when you are alive too, but cannot make decisions for yourself. If for example, you are mentally incapacitated in old age or through injury, and cannot make financial or healthcare decisions anymore.

A good, comprehensive estate plan includes your Will and other aspects such as Power of Attorney, Guardianship and a Living Will (Advance Healthcare Directive). Take a look at our Estate Planning page which includes useful FAQs to learn more about what’s involved.

+ How do I choose my Will executor?

The executor of your Will should be someone you trust and who is capable of all the tasks involved in administering it. Your executor can be a friend or a relative, and you can have more than one executor. You can name Justin Betar as one of your executors – we can work alongside your other executor to ensure your estate is properly and legally administered.

It’s important that the person you choose understands the legalities and responsibilities of being an executor. It can be complex and some people may find it overwhelming and stressful. Hence why it’s important to have conversations when you are still around, with the person you would like to be your executor, to see how they feel about it.

+ Can you prepare or change a Will urgently?

Yes, circumstances – such as serious illness or injury – need a quick turnaround of a Will or changes to a Will. We can with urgency. But we must be sure that the person who needs the Will is of sound mind, under no duress and is capable of making decisions (has ‘testamentary capacity’). We always act with the utmost compassion and care in urgent circumstances. There are a number of ways we can legally do this. As a first step, talk to our team for urgent advice on (02) 9279 1100.

+ Can you help so my estate doesn’t go to my son-in-law / daughter-in-law?

Yes. Protecting your family assets for the benefit of your children and your grandchildren is very important. We can draft provisions in your Will to ensure your children and your grandchildren are protected. We will give you advice about this to ensure your instructions are properly documented for the future generations.

+ Useful links: Wills

For more information on making and updating a Will, visit:

• NSW Trustee and Guardian: What happens if you have no Will: Intestacy FAQs

• Law Society NSW: Importance of Making a Will