In the event of your death, a professionally prepared will can ensure that your property is dealt with the way that you want and that your beneficiaries avoid unnecessary expenses required to fix an invalid will or defend against a family provision claim.
Wills Lawyers in Adelaide and Mount Barker
Our wills lawyers in Adelaide and Mount Barker can prepare your will and advise you how to avoid costly mistakes.
What Is a Will?
A will is a document that a person can make to decide what happens to his or her property after death. It must be made in writing and signed by the person making the will in the presence of two witnesses, who must also sign the will together.
What Property Is Covered by a Will?
A will can direct what happens to the property that actually belongs to a person when that person passes away. Examples of property that a person can own include a house, car, or money in bank accounts.
There are, however, many types of property you cannot give by will. For instance:
- Jointly held property. This passes automatically to the surviving joint owner (or owners) on the death of the first dying joint owner — it does not form part of the estate of the first person dying. (If you own property with another person you may hold it either as ‘joint tenants’ or as ‘tenants in common’. It is easy to confuse the two, and it is important to be sure what type of tenancy you have in the property. Joint tenancy and tenancy in common are described more fully below.)
- Property held in trust. This passes to or is held for the beneficiaries of the trust according to the terms of the trust.
- Shares. Certain shares in private companies cannot be given by will.
- Partnership property. Your interest in partnership property may be given by will, although partnership property itself cannot be given by will.
- Superannuation. Your superannuation arrangements may not entitle you to dispose of your superannuation assets by your will. The rules differ from scheme to scheme — you should discuss the matter with the administrators of your superannuation fund.
- The proceeds of life insurance policies. If the owner of the policy has nominated a beneficiary of the policy, the nomination takes precedence over the terms of the will. It follows that, where a nomination is made, the proceeds of the policy do not form part of the estate. If you wish the proceeds of the policy to go to someone other than the nominee you cannot do it by will: you must change the nomination. If you are not sure whether you nominated a beneficiary, or who you nominated, consult the insurance company concerned. Capital guarantee deposits. Some capital guarantee deposits where a beneficiary is nominated (for example, with friendly societies, and some banks) cannot be given by will.
- Property sold but not yet transferred. Property you have contracted to sell, but not yet transferred, cannot be given by will.
- Property subject to a contract to leave by will. Property you have contracted to leave by will, and property subject to a mutual wills agreement, generally cannot be given by will, but the question is complicated and good legal advice is required.
What Is the Difference Between Joint Tenants and Tenants In Common
Joint tenancy is a form of co-ownership in which the following principles apply:
- There are no shares. In theory each joint tenant has the whole of the property. No party has a specific share in the property while the joint tenancy continues. This means that the joint tenants must have equal interests in the property, and are entitled equally to its rents and profits. There can be two or more joint tenants.
- The principle of ‘survivorship’ applies. On the death of one joint tenant the surviving joint tenant gets (or joint tenants get) the whole property automatically by operation of law, irrespective of any will made by the joint tenant who died, and irrespective of the intestacy rules. This is the principle of ‘survivorship’, which applies to joint tenancies. This gives considerable protection to a joint tenant.
- It follows that property held in joint tenancy does not form part of the estate of a joint tenant who dies. This is important when deciding whether a grant of probate is needed. A grant of probate is required if the estate contains land (except in Queensland) — but this does not include property held in joint tenancy, as it does not form part of the estate. The property passes automatically, by operation of law, to the survivor or survivors without forming part of the estate of the first-dying. A grant of probate is therefore not required for transfer (to the other joint tenant or tenants) of property held by the deceased as a joint tenant. Further, a joint tenant cannot by her or his will deal with property held in joint tenancy, because the property goes automatically to the other joint tenant on the death of the testator.
- The principle of joint tenancy applies to real as well as personal property — it applies to land as well as to property like cars, shares, furniture and bank accounts.
- Joint tenancy is usual in marriage where the spouses want to hold the property equally and want the principle of survivorship to apply. It is not common in other situations. It would be somewhat unusual for a partner to a domestic partnership or personal relationship or even a marriage who buys a house using only her or his own money or who has contributed much more to the purchase price than the other partner to want to register the house in joint names where the interests must be equal and the purchaser
- It is possible for a joint tenant to sever a joint tenancy.
Tenancy in common is a form of co-ownership in which property is held in common with others but where, in contrast with joint tenants, the share of a deceased tenant in common passes to her or his beneficiaries under her or his will or intestacy and does not automatically pass to the surviving tenant or tenants in common.
- Tenants in common have fixed, undivided shares in the property. Tenants in common can have unequal shares (for example, two-thirds to one and one- third to the other).
- The share belonging to a tenant in common becomes part of the estate of that tenant in common when he or she dies; that is, a testator who is a tenant in common can leave her or his share by will or, if there is no will, the intestacy rules apply to the share that belonged to the tenant in common. (There is no principle of survivorship for tenants in common.)
- Tenancy in common is usual where two people purchase a property together, especially where they have contributed unequally to the purchase price: the parties can own equal or unequal shares to reflect their respective contributions, and each can deal with her or his share by will. A husband and wife who purchase a property together out of what they see as the assets of the marriage often purchase as joint tenants, but if they are in a blended family it may be more appropriate to purchase the property as tenants in common.
- In wills, the standard form of gift, for example of residue or the estate, to the testator’s children is to the children as tenants in common.
What If I Don’t Have a Will?
If you die without a will, your property will be dealt with according to the rules of intestacy. It’s beyond the scope of this page to set out these rules in detail, but the safest way to make sure that your property is dealt with the way that you want is to make a valid will.
When Should I Change my Will?
Although it is a good idea to review your will every couple of years, there are certain events that should always prompt you to review and amend your will including: separation, divorce, death of a relative, birth of a child, receiving a large inheritance, becoming seriously ill, making a purchase or sale of a substantial asset, establishing a self managed superannuation fund, a beneficiary becoming disabled or at risk.
If you marry, your marriage revokes your will unless the will is expressed to be made in contemplation of that marriage. Consult a solicitor about your will if you decide to marry.
Entering a domestic partnership or personal relationship can affect your will. Consult a solicitor.
Divorce is likely to affect your will. The matter is complex and the law is not uniform throughout Australia. Proposals for change are being considered in some states.Ending a domestic partnership or personal relationship can affect your will and your legal obligations. Consult a solicitor.
If you are contemplating divorce, or have been divorced since making your will, consult a solicitor.
Review the copy of your will every two or three years or whenever a major event occurs in your family, your assets or the taxation laws (to make sure the will is still what you want). In particular, consult a solicitor:
- if you change your name, or anybody named in the will changes theirs;
- if an executor dies or becomes unwilling to act as executor or becomes unsuitable due to age, ill health or for any other reason;
- if a beneficiary (someone who has been left something in the will) dies;
- if you have specifically left any property which you subsequently sell or give away, or put in trust or into a partnership, or which changes its character or name. This applies particularly to specifically bequeathed shares in a company which restructures its share capital;
- if you marry or divorce;
- if you enter or end a domestic partnership or personal relationship;
- if you have matrimonial difficulties; or
- if a child of yours is born or dies, a child is adopted or fostered, an adopted or fostered child dies or a fostering terminates.
If you wish to change your will or revoke it or make a new will without informing your husband or wife or partner, you may do so, but you should consult a solicitor. Each of you is free at any time to revoke your will and make a new will in completely different terms without consulting or informing the other. We emphasise that if one of you does decide to make a new will without informing the other, and consults us about it, our ethical duty will prevent us from drafting the new will for you and, further, will require us to tell the other of you about your intentions.
In very unusual cases a person may enter a legally binding contract to make a will in particular terms, or not to change or revoke her or his will. If you are bound by contract in this way you will certainly know about it: you will have entered the contract intentionally and the fact that you did so will have been brought home to you in strong and clear terms.
Do not add to or delete from the will after execution. Consult a solicitor if you want to change or revoke your will because even the simplest changes must be correctly done or they may have disastrous results.
If you later wish to make a list, letter or other document which relates to your affairs after your death, you should consult a solicitor. The danger is that it may not be clear whether the document is intended to be testamentary in nature (that is, a will or codicil), and litigation about the status of the document may result.
What If My Will Is Invalid?
If a will is made but is invalid—for example, because it does not comply with the required formalities—an application can be made to the Supreme Court to have the invalid will treated as a valid will provided it is clear that the deceased person intended the document to be his or her will.
However, such an application is not always successful and, even when it is successful, it is an expensive process that can be avoided by having a valid Will prepared by a lawyer.
Family Provision Claims
A person making a will is generally free to dispose of his property in any way that he or she sees fit. However, the Inheritance (Family Provision) Act 1972 (SA) provides an exception.
That Act allows certain relatives, including the spouse and children of the deceased, to claim greater provision for themselves if the deceased did not make adequate provision for their maintenance and support in his or her Will.
A lawyer will be able to advise you how to best avoid the possibility of a long and expensive family provision claim against your estate. Click here for more information.
Complex Wills & Estate Plans
Most people require only a simple will. However, if you have an existing family trust or estate plan, or if you have a split family or a large estate, your needs may be better served by a complex will or estate plan. To find out more about estate plans, click here.
How Much Does a Will Cost?
We can prepare your will for as little as $375, and even less if you request two wills for a couple or a package with an Enduring Power of Attorney or Advance Care Directions. Complex wills and estate plans, although usually charged on the basis of time completed, can often be done for a fixed fee. Click here for details.
What Is an Enduring Power of Attorney?
An Enduring Power of Attorney is a document that authorises a person that you choose to make financial and property decisions, and certain other legal and business decisions, on your behalf.
Usually, an Enduring Power of Attorney is made so that it takes effect only if you become incapable of making the decisions yourself (although it can be made to take effect straight away).