Will - Married or Defacto with Children
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WILL MARRIED or DEFACTO WITH CHILDREN
Having a Will saves your family time and money. Don''t get stuck with a government default sharing of your assets. Take control of who gets your property and possessions after you die. A Will also decreases the likelihood of your hard earned money ending up in the Government''s and Tax Office''s hands.
No Will means the Government has the freedom to decide who looks after your infant children.
SPEED
Don''t have the time or patience to ring up and make time with a lawyer. Does the lawyer even specialise in Wills? Will you ever know?
BEWARE THE HOME MADE WILL
Sure, you can go to a newsagency and get something that looks like a Will with ‘blanks’ all over it. However, does it cover what you need? Is it asking the correct questions? To be safe make your Will now with LawCentral.
FREE COPY OF THE BOOKLET “EVERYTHING ABOUT WILLS”
Included in the price of your Will is the unique booklet entitled “Everything about Wills”. It gives you exact details on how to sign the Will. It answers all the questions. Can''t speak English? Can’t read? Can’t put pen to paper? Do you need an overseas Will? It is a wonderful resource to have with your LawCentral Will. This online booklet is free with your Will. It is available after you build and purchase your Will. You can always access this electronic booklet through the My Account section.
WHICH WILL IS RIGHT FOR ME?
WILL MARRIED or DEFACTO WITH CHILDREN
Your Spouse is named as your executor.
You may give specific gifts of property and money, and then all of the balance of your estate goes to your spouse, then to your children and grandchildren.
WILL MARRIED or DEFACTO NO CHILDREN
Your Spouse is named as your executor.
You may give specific gifts of property and money, and then all of the balance of your estate goes to your spouse, then to named beneficiaries.
WILL SINGLE WITH CHILDREN
You need to nominate an executor.
You may give specific gifts of property and money, and then all of the balance of your estate goes to your children, then to your grandchildren.
WILL SINGLE NO CHILDREN
You need to nominate an executor.
You may give specific gifts of property and money, and then all of the balance of your estate goes to named beneficiaries.
YOU CANNOT USE THIS WILL IF YOU:
1. want or need to set up any trusts in your Will, for example:
- Trusts of assets for the life of a beneficiary,
- Testamentary Trusts to be controlled by a beneficiary,
- Trusts to protect assets till a beneficiary reaches a specified age,
- Protective Trusts for the benefit of a beneficiary with special needs,
- Superannuation Proceeds Trust to protect tax exemptions on distributions, or
- Maintenance Trust for beneficiaries who are under 18 years of age,
2. have dependants (ie spouse, defacto, child) and you make no provision for them in your Will,
3. are under 18 years of age,
4. are about to get married or you are about to get divorced,
5. are a trustee or appointor or guardian of a trust, or hold shares in a company which is trustee of a trust,
6. have a self - managed superannuation fund,
7. have assets held in a company controlled by you and you want to give away the asset to a different person to the person you want to give the shares in the company to, or
8. you have overseas assets which may:
- need to be treated differently in your Will due to the differing inheritance laws of some foreign countries,
- in some cases be necessary to prepare a Will both in Australia and in the country where the overseas assets are, or
- require consideration of different taxation and death duty issues.
Contact Civic Legal on (08) 9460 5000 or by email on admin@civiclegal.com.au if you need a Will prepared to cover any of these circumstances.
OTHER ISSUES TO UNDERSTAND BEFORE PROCEEDING
If land or other assets are held jointly, are they held as tenants in common or as joint tenants? The difference is important as if it is as joint tenants, when you die the surviving joint owner is absolutely entitled to the asset irrespective of what is said in your Will.
If you have a superannuation fund, whether it is a managed or self managed fund, you will need to consider how the death benefit nominations should be drafted to ensure that the nomination fits in with your overall wishes for the distribution of your assets.
START NOW
You can start building your Will now. You can always come back to it later and pick up where you left off. You will learn a lot building a LawCentral Will. Try it....
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Download the Will - Married or Defacto with Children Checklist
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Download the Will - Married or Defacto with Children Sample
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- Your Name
- What is a Last Name?
- I have 5 middle names. Where do I put them?
- Avoid home made Wills
- Die without a Will?
- Does the Will work throughout Australia?
- What assets don't form part of my Estate?
- I want to read your great 'Wills Handbook' first
- Does a solicitor need to sign my Will?
- What can a Will do for me?
- Any Estate Planning or any Testamentary Trust?
- I am moving soon - does it matter?
- I don't live anywhere.
- I only want to put in a postal address
- Do I write the full name of the state where I live
- Is it better to put in an Australian address?
- Now you can appoint a Substitute Executor
- Why appoint a Substitute Executor?
- Why do I need an address?
- Specific Gifts generally aren’t a good idea
- How do I describe the Specific Gift?
- How do I describe real estate as a Specific Gift?
- What happens if the Specific Gift doesn't exist?
- If person dies then their Specific Gift fails?
- Can I give away the Specific Gift before I die?
- Can I leave a Specific Gift to a charity?
- Specific Gifts generally aren’t a good idea
- How do I describe the Specific Gift?
- How do I describe real estate as a Specific Gift?
- What happens if the Specific Gift doesn't exist?
- If person dies then their Specific Gift fails?
- Can I give away the Specific Gift before I die?
- Can I leave a Specific Gift to a charity?
- What will happen to my body?
- Will your Will be read before you are buried?
- I want to be buried
- I only want to be cremated
- I want a certain religious ceremony
- Is the Executor bound by my wishes?
- Don't tell the Executor about your remains?
- What will happen to my body?
- Will your Will be read before you are buried?
- I want to be buried
- I only want to be cremated
- I want the organs in my body to be used
- I don't want my organs to be used
- Is your Will read before you are buried?
- Recommend only?
- Children under 18?
- Does the child go to the surviving parent?
- Can't choose your family - you can your guardians
- Can I have more than 1 guardian?
- What if the grandparents fight between themselves?
- Who should I Recommend?
- Recommend only?
- Children under 18?
- Does the child go to the surviving parent?
- Can't choose your family - you can your guardians
- Can I have more than 1 guardian?
- What if the grandparents fight between themselves?
- I don't know anyone that I want to marry
- I am already married what do I answer: yes or no?
- What about defacto relationships?
- What is a Last Name?
Your Last name is your Family Name.
For example, your full name is "Peter Bernard Smith". Therefore, you would put:
First Name: Peter
Middle Name: Bernard
Last Name: Smith
Many countries, particularly non-western countries, put their Last name first. For example, this young lady's name is "Lu, Lisa Ye San". "Lu" is the last name. Therefore:
First Name: Lisa
Middle Name: Ye San
Last Name: Lu
This Will that you are building with LawCentral ensures that your name is expressed in the Will in a way that is preferred by the Government Departments in Australia. In this young lady's case her full name appears in the Will as Lisa Ye San Lu. That is the best format for an Australian Will. - I have 5 middle names. Where do I put them?
Write all your middle names in the box marked "Middle Names".
For example your name is "Ye San Shu Sha Fi Yi Lu". "Ye" is your first name. "Lu" is your last night.
Therefore:
First Name: Ye
Middle Name: San Shu Sha Fi Yi
Last Name: Lu - Avoid home made Wills
Why pay LawCentral to build your Will? Can’t you just do it yourself? Yes, you can but homemade Wills make lawyers rich. Homemade Wills can create disputes and ambiguity.
There are 2 languages in this world: normal language and lawyer language. The court looks at lawyer language.
What does “all my personal belongings” mean? Does it include the car and the bankbooks? Is this legal: “My husband can live in the house until he remarries?”
“Everything to my children”. What does “children” mean? The family court alone has 4 definitions of this word.
Seek quality. Build your Will at LawCentral. LawCentral gives you:
1. Privacy
2. Immediacy: Do it now - and get it now
3. Freedom: Do it your way - don't have a lawyer looking at you
4. Flexibility - Die without a Will?
In Australia if you die without a Will then you die “intestate”. However, you can’t really die without a Will because each state government gives you a Will of sorts. Without your own Will the state government takes charge. The state government distributes your property according to the laws of the state in which you die.
Such acts as the:
Administration Act (WA)
Succession Act 1981 (Qld)
Wills, Probate and Administration Act 1898 (NSW)
Administration and Probate Act 1958 (Vic)
Wills Act 1997 (Vic)
Administration and Probate Act 1919 (SA)
Wills Act 1936 (SA)
Administration and Probate Act 1935 (Tas)
Wills Act 1992 (Tas)
provide a complex formula specifying who is entitled to the intestate person's property. The lucky punters are:
1. the taxman (via Capital Gains Tax, state duty and Income Tax)
2. surviving spouse, separated spouse and defacto spouse;
3. children;
4. next of kin, including parents, siblings, nephews and nieces;
5. the government (after the state and federal tax office take their share the rest goes to the state government if your relatives can’t be found or identified)
These laws often result in your property being distributed against your wishes in an unfairly rigid order.
If you die without your own Will then you die a rudderless ship. Don't let the government meddle in your affairs, do a Will. - Does the Will work throughout Australia?
This Will works in every state and territory in Australia. This Will operates throughout Australia. In other words this Will works in NSW, Qld, Victoria, South Australia, Tasmania, WA, NT and ACT.
This Will is for assets that you have in Australia. If you have assets in other countries then you may need to do a Will in that country or jurisdiction as well. - What assets don't form part of my Estate?
1. Company assets
Company assets remain company assets. You can only refer to the shares in the company in the Will.
2. Family Trusts
Family Assets remain in the Family Trust. "Loan Accounts" however belong to the owner.
3. Joint Tenancy
You can own an asset with another person as "Joint Tenancy" or "Tenants in Common". If you own the asset as "Joint Tenants" then the survivor gets the assets - it doesn’t go into your Will. Your Will can’t control the asset, if you die first. You can destroy the “Joint Tenancy” by transferring the property back into the same names but as “Tenants in Common”. If you then die your interest in the asset goes into your Will. There are usually no state duty or Capital Gains Tax implications on such a transfer.
4. Superannuation
Super may or may not go into your Will. It depends on whether you have an enforceable binding nomination. If you don't then it depends on the discretion of the Trustee of your Super Fund. - I want to read your great 'Wills Handbook' first
The Wills Handbook tells you how to sign a Will and gives help to your family about things they need to do when you die.
The Handbook is a gift to you only once you have build and paid for your Mutual Wills.
The Handbook won't help you prepare up your Mutual Wills. The Hints help you prepare the Will - not the Handbook. - Does a solicitor need to sign my Will?
No, a Will does not require the signature of a solicitor.
A Will can be witnessed by any adult. However, a beneficiary must not witness the Will.
The LawCentral Will comes with a complete signing directions Manual for you to follow. - What can a Will do for me?
A Will is basically a legal document that allows a dead person to tell living people what to do and they have to do it. This is an awesome power if you think about it. Not only does this allow a person to speak from beyond the grave, a Will also achieves a level of obedience that is seldom seen during life.
The most common function of a Will is to transfer the ownership of a deceased's assets to a designated beneficiary. Any assets that don't transfer automatically upon your death (e.g., Superannuation, family trust assets and real estate and bank accounts owned jointly with another) end up as part of the estate. A Will, then, acts as a back-up plan for how these assets get distributed once they are stuck in the estate.
On a similar note, a Will states who is to inherit assets from the estate. A Will can be used to distribute assets to a specific person(s) or to a favourite charity. A Will can also be used to leave a gift of a cherished item or monetary amount to somebody special left behind (e.g., caretaker, family friend, favourite exotic dancer). Without a Will, assets in the estate get distributed according to rigid state rules that don't always match your intentions, especially if they end up by default in the state's coffers. - Any Estate Planning or any Testamentary Trust?
Any Estate Planning or any Testamentary Trust?
Sorry, this is a straight forward Will. It is a simple Will. There is no consideration of your taxation matters.
There is no Estate Planning. There are no Testamentary Trusts in your Will.
There are about a dozen tax law firms in Australia, such as Civic Legal, that can attend to Estate Planning and Testamentary Trusts. However, you are looking at $2,000 plus in legal fees for such quality advice.
Please contact Civic Legal on (08) 9460 5000 if you would like to speak to someone about a more complex Will. - I am moving soon - does it matter?
The address in your Will is mostly used to identify you. There may be 2 "Jason Richard Styles" living in Australia.
Therefore, you should put in the address that you are living in at the time you sign your Will. - I don't live anywhere.
Sorry to hear that. However, you will need to put in the address of where you are sleeping the night you sign your Will.
If you are staying with your great aunt for a few months then put in her address. - I only want to put in a postal address
Generally, when you have the Will "proved" the Courts like to see a residential address. They may get upset if they just see a Post Office Box as the address.
There may be many people on the planet with a name the same as yours. Your address on the day that you made your Will helps identify who you are. Sometimes your address is not very useful. You may be house-sitting. You may be "homeless". You may be travelling. For example you may live at "Landsdown Farm", 3 kilometres down the Metercup Road past Miling, over by the 3rd last tree.
You are therefore welcome to put in a 2nd address. Put in the physical location (residential address) on this page. Tick yes to "I also want a postal address in my Will" and on the next page you can type in your postal address. - Do I write the full name of the state where I live
It looks better in the Will to put in the full name rather than the abbreviation.
However, both are correct. For example, Victoria could also be ‘Vic’. - Is it better to put in an Australian address?
That is an interesting question.
You should put in an address that clearly identifies you. The purpose of the address is to identify you.
If you are holidaying overseas then, yes, put in your residential address back in Australia.
There is a belief amongst some lawyers that the Probate office would prefer to see an address in Australia. - We are not married!!
That is ok.
We are using the term "Spouse" in the question. This Will works for all relationships - gay, married, defacto or otherwise.
If you are leaving everything to your Spouse, then you are well on your way to building this Will. - I don't want to leave everything to my Spouse
That is fine. Most couples do, but you don't have to.
If you don't want to leave everything to your Spouse, then this Will is not for you. You should go to our Will called "Single Person with Children" and then you can leave everything to your children. - I may have more children. How about unborn?
That is ok.
Any unborn children will be covered in this Will.
The Will refers to the names of the children you enter and "any child of mine born after the date of this Will" - Age of Majority
What happens if one your beneficiaries are too young to get the gift?
If you die and your beneficiaries are at an age that you feel is too young to be financially responsible, then you can hold your estate in trust for them until they reach a certain age.
Clients are tending to have higher ages for this than previously. For example, nominating the age 23, so then their children have completed University before they receive control of your estate.
The youngest age you can get a gift under a Will is 18 years.
This Age of Majority is the default age. For your Residuary Beneficiaries you get another opportunity to give special ages to different beneficiaries. You are asked this question later. For now, we just need the general Age of Majority. - Should I just make it 18 years of age?
This is a personal question. Most people set the general Age of Majority at 18. However, you can make the age any age you want. It is your Will.
Some people select 21 years of age. - Now you can appoint a Substitute Executor
A parent with babies and small children normally appoints all their children as Substitute Executors - even though they are all under 18 years of age.
This is because your children may well be 60 years of age when you die. You don't want to have to keep amending your Will all the time so you appoint your young children.
However, what happens if you die and your children are under 18 (or whatever age you selected as your Age of Majority)? Or you die and your unborn children never were born?
You need Substitute Executors. You can appoint your mum and dad. However, because they are older they are more likely to die before you. Therefore, you may want to appoint a brother, sister or younger aunt or uncle as Substitute Executors. Close family friends may also be happy to act as your Executor. Ask them first. - Why appoint a Substitute Executor?
Your initial Executor:
1. may die before you;
2. may not want to do the job (it is a voluntary job after all); or
3. may be too old or lack the mental ability to sign documents.
What do you do then?
You appoint a Substitute Executor, just in case. - Why do I need an address?
You need to put in an address for certainty.
There may be two Dick Seddons.
Therefore, to put more certainty into your Will you have to insert an address for the Substitute Executor. - Specific Gifts generally aren’t a good idea
Specific Gifts are not popular. Most people leave everything they own to their Spouse or their children in equal shares. If you are happy to do that then don't put in any Specific Gifts.
It is not a good idea to leave specific gifts if you are going to sell or give them away before you die. You could lose or use up the gift.
Instead of Specific Gifts think about leaving a "wish" list on a separate piece of paper. However, they aren’t binding on the Executor.
If you want a binding Specific Gift then you will need to complete this. - How do I describe the Specific Gift?
For a Will to be effective it must be certain. You therefore need to describe the gift with certainty. This creates complications. Let's say you want to leave all the money you have in your Commonwealth Bank Account, Number 387439744, to your nephew. Should you describe the gift as "all money in my account in my name being Commonwealth Bank, Account Number 387439744"?
What happens if the bank gives this account another identification number? What happens if you get Alzheimer’s Disease and your power of attorney moves the money to another bank for a better interest? You can't change your Will because you no longer have mental capacity.
This is yet another reason validating why we don't like Specific Gifts.
You could try all the money currently in "Commonwealth Bank Account Number 387439744", but does that include the interest? What if the money is put in another account - more money is then put in and then taken out. What money were you talking about? - How do I describe real estate as a Specific Gift?
You need to describe the real estate with certainty.
This is an example only:
22 Grenville Street, Double Bay, Western Australia, being all the land contained in Lot 34 on Plan/Strata Plan/Diagram 52 Volume 34 Folio 7.
If you want your brother to have your interest in your family home then add to the description something like "however, if I no longer living at that address then all interest that I may have in the property that I am living as my usual place of residence at the date of my death". Of course if you moved into a rented retirement home then you brother will get nothing from this gift. That is another reason why we don't like Specific Gifts. - What happens if the Specific Gift doesn't exist?
The Specific Gift may no longer be in existence. It may have been lost, destroyed or used up.
For example, you may give away your V12 Jaguar sports as a Specific Gift. If you sold the V12 before you died then that gift merely fails in the Will. - If person dies then their Specific Gift fails?
If any person dies then that Specific Gift fails and the Specific Gift goes back to the Estate.
- Can I give away the Specific Gift before I die?
Yes, you can. For example, you may want to leave all your jewellery to your daughter. If you give some of that jewellery to your daughter before you die, then she doesn't get it again when you die, as she already has it.
Another example: you give away all your tools to your friend next door. In your Will you left all your tools to your son. Your son misses out. The Specific Gift fails because you died with no tools. Your son can't ask the Executors to pony up for the value of the tools. The gift fails and your son gets no tools. - Can I leave a Specific Gift to a charity?
You can leave a gift to a charity however this Will is not designed to allow for gifts to charities. This is because gifts to charities need careful drafting.
If you wish to leave a specific gift to a charity talk to a lawyer - contact Greg Mohen at Civic Legal on (08) 9460 5000. - Specific Gifts generally aren’t a good idea
Specific Gifts are not popular. Most people leave everything they own to their Spouse or their children in equal shares. If you are happy to do that then don't put in any Specific Gifts.
It is not a good idea to leave specific gifts if you are going to sell or give them away before you die. You could lose or use up the gift.
Instead of Specific Gifts think about leaving a "wish" list on a separate piece of paper. However, they aren’t binding on the Executor.
If you want a binding Specific Gift then you will need to complete this. - How do I describe the Specific Gift?
For a Will to be effective it must be certain. You therefore need to describe the gift with certainty. This creates complications. Let's say you want to leave all the money you have in your Commonwealth Bank Account, Number 387439744, to your nephew. Should you describe the gift as "all money in my account in my name being Commonwealth Bank, Account Number 387439744"?
What happens if the bank gives this account another identification number? What happens if you get Alzheimer’s Disease and your power of attorney moves the money to another bank for a better interest? You can't change your Will because you no longer have mental capacity.
This is yet another reason validating why we don't like Specific Gifts.
You could try all the money currently in "Commonwealth Bank Account Number 387439744", but does that include the interest? What if the money is put in another account - more money is then put in and then taken out. What money were you talking about? - How do I describe real estate as a Specific Gift?
You need to describe the real estate with certainty.
This is an example only:
22 Grenville Street, Double Bay, Western Australia, being all the land contained in Lot 34 on Plan/Strata Plan/Diagram 52 Volume 34 Folio 7.
If you want your brother to have your interest in your family home then add to the description something like "however, if I no longer living at that address then all interest that I may have in the property that I am living as my usual place of residence at the date of my death". Of course if you moved into a rented retirement home then you brother will get nothing from this gift. That is another reason why we don't like Specific Gifts. - What happens if the Specific Gift doesn't exist?
The Specific Gift may no longer be in existence. It may have been lost, destroyed or used up.
For example, you may give away your V12 Jaguar sports as a Specific Gift. If you sold the V12 before you died then that gift merely fails in the Will. - If person dies then their Specific Gift fails?
If any person dies then that Specific Gift fails and the Specific Gift goes back to the Estate.
- Can I give away the Specific Gift before I die?
Yes, you can. For example, you may want to leave all your jewellery to your daughter. If you give some of that jewellery to your daughter before you die, then she doesn't get it again when you die, as she already has it.
Another example: you give away all your tools to your friend next door. In your Will you left all your tools to your son. Your son misses out. The Specific Gift fails because you died with no tools. Your son can't ask the Executors to pony up for the value of the tools. The gift fails and your son gets no tools. - Can I leave a Specific Gift to a charity?
You can leave a gift to a charity however this Will is not designed to allow for gifts to charities. This is because gifts to charities need careful drafting.
If you wish to leave a specific gift to a charity talk to a lawyer - contact Greg Mohen at Civic Legal on (08) 9460 5000. - What will happen to my body?
When you die you have only one right. That is the right to burial. You can however, put into you Will instructions to your Executor regarding how you wish to have your body disposed of.
For example, you can leave the wish to be cremated and the ashes sprinkled into the breeze at your favourite location, or you can have your body donated to science. You can ask that you are buried according to religious rights.
However, it is best to also discuss these wishes with your Executor and family members as often the process is completed before your Will is looked at. - Will your Will be read before you are buried?
That is a good question.
The sad answer is that you get buried or cremated before anyone takes a peek at your Will.
In many respects your Will is only really suppose to do one thing - that is - get rid of things you own. It isn't designed to dispose of your body.
Therefore, it is important to let your next of kin, loved ones and Executors know what you want done. The Will only helps back up what you want.
You can also pre-pay your funeral. That helps set the direction as to your wishes. - I want to be buried
Well then, answer "yes" to this question and then on the next page you can tell us how you want your body disposed of.
- I only want to be cremated
Well then, answer "yes" to this question and then on the next page you can tell us how you want your body disposed of.
- I want a certain religious ceremony
Well then, answer "yes" to this question and then on the next page you can state in your Will the religious rites you want for your funeral.
- Is the Executor bound by my wishes?
Your Will is an economic document. It gives away what you own. Your Executor has to follow that economic direction to the letter.
However, your Executor is not bound to follow your wishes when it comes to your physical remains.
You can however, put into you Will instructions to your Executor on how you wish to have your body disposed. These are just "wishes" and "hopes".
For example, you can leave the wish to be cremated and the ashes sprinkled into the breeze at your favourite location, or you can have your body donated to science. You can ask that you are buried according to religious rites.
However, it is best to also discuss these wishes with your Executor as generally the process is completed before your Will is even opened. For example, if you want to donate your body to science then you need to fill out forms with the government and relevant universities. - Don't tell the Executor about your remains?
So you want to be silent about what you want done with your body?
Well that is easy. Just press "No".
It isn't legally binding anyway. It is a "wish". Often your Will is only read after you are cremated or buried. - What will happen to my body?
When you die you have only one right. That is the right to burial. You can however, put into you Will instructions to your Executor regarding how you wish to have your body disposed of.
For example, you can leave the wish to be cremated and the ashes sprinkled into the breeze at your favourite location, or you can have your body donated to science. You can ask that you are buried according to religious rights.
However, it is best to also discuss these wishes with your Executor and family members as often the process is completed before your Will is looked at. - Will your Will be read before you are buried?
That is a good question.
The sad answer is that you get buried or cremated before anyone takes a peek at your Will.
In many respects your Will is only really suppose to do one thing - that is - get rid of things you own. It isn't designed to dispose of your body.
Therefore, it is important to let your next of kin, loved ones and Executors know what you want done. The Will only helps back up what you want.
You can also pre-pay your funeral. That helps set the direction as to your wishes. - I want to be buried
Well then, answer "I want to be buried" to this question. You can also specify whether you would like the Executor to follow the rites of your faith.
- I only want to be cremated
Well then, you have 2 choices. You can answer:
"I want to be cremated and my ashes to be disposed of as my Executor sees fit"
OR
"I want to be cremated and my ashes to be"
and then specify what you would like done with your ashes.
You can also specify whether you would like the Executor to follow the rites of your faith. - I want the organs in my body to be used
Well then, answer "To be used" to this question.
If you don’t want all of your organs and tissue to be used for organ donation, you can make specify that on this page. - I don't want my organs to be used
Well then, answer "Not to be used" to this question.
- Is your Will read before you are buried?
That is a good question.
The sad answer is that you often are buried or cremated before anyone takes a peek at your Will.
In many respects your Will is only really suppose to do one thing - that is - get rid of things you own. It isn't designed to dispose of your body.
Therefore, it is important to let your next of kin, loved ones and Executors know what you want done. The Will only helps back up what you want.
You can also pre-pay your funeral. That helps set the direction as to your wishes. - Recommend only?
If you die leaving infant orphan children, then you can put in your Will a recommendation to the Family Court as to who you would like to care for your children. This is a recommendation only as the Family Court will make the final decision regarding who will have the care of your children. Even though this is only a suggestion to the Family Court, it is useful to put in this clause if you have young children as:
1. It helps your children understand your wishes.
2. It gives notice to all of your family and friends of what you wanted.
3. It is a good idea to ask your preferred guardian first as they do not have to accept. - Children under 18?
If you have children under 18 years of age then now is your chance to say who will look after your child or children if you die.
- Does the child go to the surviving parent?
There are many government agencies, such as Child Welfare Services, Family Court and Children's Services that may get involved.
If you and your spouse live together with the child then it is highly likely that the child will stay with your spouse when you die.
The courts are keen to keep the child in an environment in which the child has become accustomed. The situation would be different if the child's remaining parent is not a good person. - Can't choose your family - you can your guardians
If you have minor children, it is highly recommended that you make a Will if for no other reason than to name a guardian for them. Although the court deciding your children's fate does not have to follow your instructions, courts usually give a lot of weight to a deceased parent's wishes.
Without your input in a Will, a court will probably award the custody and care of your children to the nearest available relative (which may include somebody very undesirable to you that would make even a stranger seem more appealing).
The flip side to this issue is that you actually have somebody you can name as guardian. Like parenting itself, this is an awesome responsibility that should not be entered into lightly. You should carefully select your guardian. You should also obtain their consent in advance before listing them in your Will. Remember, a chosen guardian does not have to accept this responsibility and can refuse to take your children.
A good source of potential guardians is close friends or family members with kids of their own. Since they are in the same position as you, you can agree to make reciprocal provisions in your wills to take each other's children if needed. - Can I have more than 1 guardian?
Yes, you can. For example, for young couples with children, they can appoint all 4 of their (still relatively young) parents. The minor children don’t necessary live with any of their grandparents.
The grandparents, as guardians, may decide that the children will be with one of the uncles or aunties. The grandparents act in concert to decide what is best for the children. - What if the grandparents fight between themselves?
Well you can just appoint your own mum and dad. However, it is open for anyone (including grandparents, uncles, adult children etc…) to approach the Family Court to ask the Family Court decide who will look after the children under 18 years of age – so you can’t stop them fighting – whether they are mentioned as Guardians or not.
NOTE: These are not alternative or backup guardians. If you put in 2 guardians, both persons are guardians. If one dies, then the rest carry on. - Who should I Recommend?
You can appoint parents (if they aren’t too old by the time your youngest turns 18 years). You can also appoint the children's other parents as well - yes all 4 grandparents. Don't forget to leave instructions as to how you want your children brought up - location, religion, school. The list is endless.
- Recommend only?
If you die leaving infant orphan children, then you can put in your Will a recommendation to the Family Court as to who you would like to care for your children. This is a recommendation only as the Family Court will make the final decision regarding who will have the care of your children. Even though this is only a suggestion to the Family Court, it is useful to put in this clause if you have young children as:
1. It helps your children understand your wishes.
2. It gives notice to all of your family and friends of what you wanted.
3. It is a good idea to ask your preferred guardian first as they do not have to accept. - Children under 18?
If you have children under 18 years of age then now is your chance to say who will look after your child or children if you die.
- Does the child go to the surviving parent?
There are many government agencies, such as Child Welfare Services, Family Court and Children's Services that may get involved.
If you and your spouse live together with the child then it is highly likely that the child will stay with your spouse when you die.
The courts are keen to keep the child in an environment in which the child has become accustomed. The situation would be different if the child's remaining parent is not a good person. - Can't choose your family - you can your guardians
If you have minor children, it is highly recommended that you make a Will if for no other reason than to name a guardian for them. Although the court deciding your children's fate does not have to follow your instructions, courts usually give a lot of weight to a deceased parent's wishes.
Without your input in a Will, a court will probably award the custody and care of your children to the nearest available relative (which may include somebody very undesirable to you that would make even a stranger seem more appealing).
The flip side to this issue is that you actually have somebody you can name as guardian. Like parenting itself, this is an awesome responsibility that should not be entered into lightly. You should carefully select your guardian. You should also obtain their consent in advance before listing them in your Will. Remember, a chosen guardian does not have to accept this responsibility and can refuse to take your children.
A good source of potential guardians is close friends or family members with kids of their own. Since they are in the same position as you, you can agree to make reciprocal provisions in your wills to take each other's children if needed. - Can I have more than 1 guardian?
Yes, you can. For example, for young couples with children, they can appoint all 4 of their (still relatively young) parents. The minor children don’t necessary live with any of their grandparents.
The grandparents, as guardians, may decide that the children will be with one of the uncles or aunties. The grandparents act in concert to decide what is best for the children. - What if the grandparents fight between themselves?
Well you can just appoint your own mum and dad. However, it is open for anyone (including grandparents, uncles, adult children etc…) to approach the Family Court to ask the Family Court decide who will look after the children under 18 years of age – so you can’t stop them fighting – whether they are mentioned as Guardians or not.
NOTE: These are not alternative or backup guardians. If you put in 2 guardians, both persons are guardians. If one dies, then the rest carry on. - I am divorced
In some states divorce destroys the Will. In other states divorce has no effect on the Will's validity.
If you are already divorced and are not ready to get married again then press "no".
If you are divorced and ready to marry someone else then press "yes". - I don't know anyone that I want to marry
That's fine. Just press "no".
(Obviously if you are already happily married then you would also press "no". As you are not contemplating getting married - you already were married before you signed your Will.) - I am already married what do I answer: yes or no?
You answer "no".
- What about defacto relationships?
If you ever get married to your defacto then this invalidates the Will.
- Why ask this Question?
When making a Will you must know and understand what you are signing. You must either see or hear the written word. If you cannot see clearly, then you just need someone to read the Will to you.
This is a simple Will.
If you are fully or partially visually impaired, it is important that your Will is prepared in accordance with your wishes and signed correctly. You should get some advice from a lawyer to make sure these issues are addressed properly.
Please contact Greg Mohen at Civic Legal on (08) 9460 5000 for expert legal advice. - Can a blind person make Will?
Yes, of course a blind person can make a Will. Provided a person is of sound mind they can make a Will - whether they can see or not.
It is common for people, especially as they get older, to not be able to focus properly on the written word.
However, this is a simple Will.
If you are fully or partially visually impaired, it is important that your Will is prepared in accordance with your wishes and signed correctly. You should get some advice from a lawyer to make sure these issues are addressed properly.
Please contact Greg Mohen at Civic Legal on (08) 9460 5000 for expert legal advice. - I'm just old and can't focus on the written word
It is common for people, especially as they get older, to not be able to focus properly on the written word.
However, this is a simple Will.
If you are fully or partially visually impaired, it is important that your Will is prepared in accordance with your wishes and signed correctly. You should get some advice from a lawyer to make sure these issues are addressed properly.
Please contact Greg Mohen at Civic Legal on (08) 9460 5000 for expert legal advice. - I have perfect eyesight - I can't read 'English'
The next question deals with this. This question is about whether your reading glasses are still operating.
We are not yet asking about your ability to understand the English language.
This question is about whether you have good eyesight. - You have to be of sound mind
You must be of sound mind to make a valid Will. If you have suffered a stroke or have any other medical condition that might allow someone to say that you do not have mental capacity to make a Will, then you need to go to your doctor and get a note say that you are capable of making a Will, and then keep this letter with your Will.
- Understanding the Will so it is valid
As your Will is created in English, you must be able to understand English to understand what you are signing. If you do not understand English the Will must be translated into a language you understand before it can be signed as a valid Will.
This is a simple Will.
If you cannot read or understand English, then you should get some advice from a lawyer to make sure your Will is prepared in accordance with your wishes and signed correctly.
Please contact Greg Mohen at Civic Legal on (08) 9460 5000 for expert legal advice. - Putting pen to paper?
A Will must be signed in a formal way before it is considered a valid Will. For example, each page must be signed by the Will Maker and by two witnesses.
This is a simple Will.
If you cannot put pen to paper, then you should get some advice from a lawyer to make sure your Will is prepared in accordance with your wishes and signed correctly.
Please contact Greg Mohen at Civic Legal on (08) 9460 5000 for expert legal advice .
Your Name
Residential Address
Detail Of Spouse - Married Or Defacto
Details of Children
Qualifying Age
Substitute Executors
Specific Gifts
Specific Gift Details
Body Disposal
Body Disposal Specify
Organ Donation
Guardians
Guardian Details
Getting Divorced?
Getting Married?
Help On How to Sign a Will
Understand English?
Put Pen to paper?
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This document has been prepared by: Civic Legal
