How to Write a Will in New South Wales (NSW)

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Writing a will is a key part of estate planning that allows you to have the last word on things such as how to divide your assets, and who looks after your children (if they are minors) and pets. With the assistance of a wills and estates lawyer, making a will can expedite this estate planning process and ensure your last will is legally binding. This guide will cover everything you need to know about how to write a will.

 

Why is a Will Important?

Writing a will is a crucial step in planning for the future in ensuring that your property and possessions are distributed according to your wishes after you pass away. Understanding how to write a will is essential for anyone looking to secure their legacy. In NSW, the process of making a will involves specific legal requirements that must be met to ensure its validity. 

If you’re wondering how to write a will in NSW, it’s important to consider all aspects, including who will inherit your assets. By taking the time to write a will, you can prevent complications later on, such as questions about what happens if you die without a will

Moreover, understanding how much it costs to make a will can help you plan accordingly. A well-drafted will clarifies your intentions and answers questions such as why a will is important and how to make a will that reflects your wishes. Remember, a valid will can be changed, but it’s essential to follow the proper procedures to ensure it remains enforceable.

What are the requirements of a valid will?

To ensure a will is valid, it generally needs three key elements:

  1. It must be in writing, whether handwritten, typed, or printed.
  2. It must be signed.
  3. Your signature must be witnessed by two other individuals, who also need to sign the will.

However, even after writing a will that meets these criteria, your assets cannot be distributed immediately. Often, a court must first grant probate. A grant of probate is a legal document that authorises your executor to manage your estate according to your will, ensuring that the distribution aligns with your wishes. Understanding how to write a will properly and the role of probate is essential in the process of making a will in NSW.

 

Writing a Will in NSW: Steps for Success

Creating a will is a vital step in ensuring your wishes are honoured after your passing. Understanding how to write a will in NSW is essential for protecting your assets and providing peace of mind to your loved ones. This guide outlines the critical steps involved in making a will in NSW, from ensuring your details are accurate to properly signing the document. By following these steps, you can confidently navigate the process of writing a will, ensuring that your estate is managed according to your desires.

  1. Ensure your details are accurate and up-to-date.
    For a will to be considered a legal document, you need to be 18 years of age or older. In limited cases, a person younger than 18 may be able to write a will, but this situation requires expert legal advice. Ensure your full name, current address, and identification details are correctly written.
  2. Explicitly state your mental state.
    It’s important to clearly indicate that you are of “sound mind” and revoke any previous wills. This clarification is crucial in case your will is contested. If there are multiple versions, it’s essential to identify which is the most current and legally binding.
  3. Assign your Executor and beneficiaries.
    When learning how to write a will, remember to appoint an executor and beneficiaries. The executor administers your estate and ensures your assets are distributed according to your wishes. Beneficiaries are those who will receive your assets or guardianship of your children. As relationships and circumstances change, it’s vital to update your will and the designated beneficiaries accordingly.
  4. Ensure it’s properly signed with witnesses.
    Make sure each page is dated and signed, with at least two witnesses present during the signing to meet legal requirements. Creating your will with a lawyer or in front of a Notary Public helps ensure the document is watertight, reducing the risk of disputes.Even if you choose to write a will on your own, having it reviewed by a solicitor or Public Trustee is important to avoid invalidating your wishes and potentially leading your estate to tribunal after your passing. Understanding how to write a will in Australia can greatly impact the effectiveness of your estate planning.

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Need help writing your Will? Owen Hodge is here to assist you. Talk to one of our lawyers today.

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Wills & Estate Team

Alice Holman

Wills & Estate Planning Lawyer

James Kelly

Wills and Probate Lawyer

Kristy Hatcher

Wills & Estate Litigation Lawyer

Kristy-Lee Burns

Partner, Family and Commercial Lawyer

Louise Young

Paralegal

Richard Farmer

Commercial and Real Estate Lawyer

Frequently Asked Questions on Wills

As you navigate the process of writing a will, you may have several questions about its requirements and implications. Understanding the intricacies of making a will in NSW is crucial for ensuring your wishes are fulfilled after your passing. In this section, we address some of the most frequently asked questions regarding wills, providing clarity on topics such as how to write a will, the importance of having a valid will, and what to consider when planning your estate.

If you die without a valid will, legally referred to as “dying intestate,” the intestacy rules under the Succession Act 2006 (NSW) will dictate how your assets are distributed. Typically, this means that your assets will pass to your spouse. If you do not have a spouse, the order of eligible relatives who may inherit is as follows:

  • Children
  • Parents
  • Brothers and sisters
  • Grandparents
  • Aunts and uncles
  • Cousins

However, the situation can become more complicated if you have both a legal spouse and a de facto partner, or if you have children from different relationships. If you die without a will and have no eligible relatives, your estate will pass to the State (Crown).

The intestacy rules primarily allow your family members to inherit, making it crucial to have a valid will if you wish to leave gifts to friends or charities.

The cost of creating a will can vary significantly based on individual circumstances. Factors influencing the overall expense may include the complexity of your estate, the specific provisions you wish to include, and whether you choose to engage a legal professional or utilize online resources. It is advisable to consider your unique situation when estimating the potential costs associated with drafting a will to ensure that it accurately reflects your intentions and adheres to legal requirements.

You are free to change your will whenever necessary, particularly when your circumstances change—such as in the case of divorce, remarriage, or the death of a beneficiary. However, you cannot simply alter your will by crossing out sections. How can I change my will? 

For minor changes, you need to create a codicil, which serves as an authorised amendment to the original will. Like a will, a codicil must be in writing and signed by you, with two witnesses present. For significant changes, it’s typically best to draft an entirely new will.

The following individuals are typically eligible to contest a will in New South Wales:

  • Spouse
  • De facto partner
  • Child
  • Former spouse
  • A person who was wholly or partially dependent on the deceased and was either a grandchild or a member of the household.
  • A person who shared a close personal relationship with the deceased.

Generally, getting married will revoke any previously made will, though there are exceptions that your solicitor can clarify. If you divorce, any gifts to your former spouse under your will, will be nullified, as will their roles as trustee, executor, or guardian, except for any property designated for children.

It’s essential to create a new will if you marry, divorce, or have been separated for an extended period.

You can leave your assets to anyone you choose; however, you have a general obligation to adequately provide for your spouse or de facto partner, children, and any dependents. If you fail to do so, they may be able to bring a family provision claim against your estate.

Consult With Estate Planning Experts at Owen Hodge Lawyers

While it may appear more cost-effective to draft your own will, it is highly recommended to seek the assistance of experienced lawyers to prevent disputes and ensure that your wishes are accurately fulfilled. For expert guidance on how to write a will and to discuss making a will in NSW, please contact our Wills and Estate planning team during business hours at 1800 770 780.  Owen Hodge Lawyers are here to provide you with the advice you need for effective estate planning.