What Are The Main Rules Of Writing A Will

Preparing to write your will involves a bit of time and brain power! You need to think long term and carefully consider your life. After all, your will is a final record of your wishes after you've passed on.

Now, we're not trying to scare you! We want to help you ensure that your will is an accurate reflection of how you'd like to deal with your most important assets and record your requests.

Use our guide to top 10 things to think about when preparing to write your will – whether you're doing it yourself or seeing a professional will writer.

1. Guardianship of children

In some cases, we find people are prompted to write their first will after the birth of a child. In doing so, you're securing your wishes for the future of your children if you and your partner are no longer around.

mum and bub hires

When writing your will, you can nominate another person(s) to care for your children until they are adults (i.e. be their guardian).

When choosing whom to nominate as a guardian, consider:

similarities with your lifestyle, values and religious beliefs – whether theirs fit closely to yours
who your child might already have a bond with
whether the nominee already has or is planning to have children
the transition, in terms of location and lifestyle, your children would need to make
practically, who can take on the role – physically, financially and emotionally

You can write down your wishes for your children, which may include: where should they reside, who they should see, what type of education and extra-curricular activities you would like them to undertake and the key values that you would like them to have. You can also include your thoughts on issues like access to pocket money etc. This information can be stored with the will for access by the guardians.

2. Assets – all things owned

List your assets, perhaps in categories. It might also be helpful for you to jot down an approximate value of each asset and whether there is a mortgage or loan.

If you own significant assets, such as a house, property or car – correctly identify whether you own this asset independently or with someone else, (for example: a spouse or business partner). For real estate there are two ways you can share ownership with someone else. If an item is 'jointly owned', the surviving owner will acquire the property automatically when you die. The jointly owned asset will not form part of your will. If the item is owned as 'tenants in common', the portion of the property owned by you may be dealt with in your will.

In addition to considering the type of property ownership, make sure you know the whereabouts of your certificate of title for your house. It is often stored at your home or at the bank. Missing or lost titles are expensive and time-consuming to replace after someone passes away.

3. Cherished Things

When considering your assets, don't overlook the smaller items. Such items may not be significant in value but they may still have an intrinsic, personal or emotional value.

Our will writers often see parents or grandparents leave their children specific gift items such as jewellery or other family heirlooms.

Think about whether you have any specific cherished things that you want to gift to someone. In need of some inspiration? Take a look at our suite of "Cherished Things" videos, showing real Victorian's gifting their precious items to loved ones.

4. Appointing an executor

Your executor is a person or organisation appointed by you to carry out your final wishes as outlined in your will. When you die, your executor becomes responsible for managing your estate.

The role of executor should not be considered lightly. A family member who is nominated may feel very honoured, but they will need to have the time and be savvy enough to fulfil the role.

Generally speaking, if appointing an individual, select someone who is a named beneficiary of the estate. Having to act as executor can be an onerous task for someone who does not have an interest in the estate.

To learn more about the role of an executor, you can download State Trustees' executor checklist. This document contains an explanation of the role and a list of all the tasks an executor is required to undertake. It's a free download which you can use as a reference or share with your nominated executor.

In some instances there may be no one suitable for the role. Or, if there is a risk of family conflicts and it's not possible to nominate a neutral person to take on this role, you might consider nominating State Trustees as your executor. This will provide peace of mind for your loved ones at the time of your passing. Using an independent executor service does come at a cost so make sure you understand the fees and charges. They will be paid out of your estate.

5. Beneficiaries

Beneficiaries are the persons, charities or organisations that you wish to benefit from your will. Beneficiaries may receive specific gifts and/or a share in your residuary estate. Your residuary estate is what remains after the payment of any debts, funeral and testamentary expenses. Each beneficiary's share is generally expressed as a percentage of the residuary estate.

On some occasions, items or assets other than money can form part of a beneficiary's entitlement. For example, a Cherished Thing as discussed above. This may arise when a particular item is written into the will to be given to a beneficiary rather than being sold, and form part of the estate.

A person of any age, including a minor (that is a child under 18 years of age), can be a beneficiary. However, if a minor is listed as a beneficiary of property or shares, the executor is responsible for administering the assets of the minor beneficiary in accordance with the terms of the will.

Once you have decided who to name as your beneficiaries, it is crucial that you are able to provide their names and contact details. You may also wish to provide the Australian Business Number for any charity or organisation that you wish to benefit, to ensure that your estate is distributed to the correct entities. Read more about making bequests below.

6. Giving to charities or making a bequest

Charities can be included as beneficiaries in wills, for example if the testator wants to acknowledge these organisations who have assisted them or other family members during their lifetime.

An example of making a bequest to a charity is leaving a portion of your estate to the Royal Children's Hospital. The Royal Children's Hospital has a presence in several different states. Therefore, you can identify the specific hospital you wish to nominate by way of providing the Australian Business Number for that hospital. Failing to do so may result in issues as to which hospital you actually wanted to benefit. When your executor begins the task of administering the estate, this will also make their job that much simpler.

Do you intend to make a bequest? If so, decide which specific charity or charities you would like to benefit. Unless you have a favoured charity, you might like to browse an online charity directory such as Include a Charity . If you regularly donate to certain charities, bring along any relevant literature regarding that charity to your will appointment so that it can be easily identified and included.

In addition to this, you may wish to contact a charity prior to your will appointment to satisfy yourself that you are benefitting the correct charity.

7. Funeral instructions

Writing your will is a time to consider your preferred funeral arrangements. We recommend including funeral instructions in your will to ensure that those close to you and the executor, are aware of your wishes. Have you considered whether you want to be buried or cremated? If so, where?

This is also an opportunity to consider being an organ donor. Your intentions can be included in your will. However, you will need to officially register to be an organ donor via Donatelife.gov.au

Both topics are often difficult to discuss with your loved ones. Including these details in your will lets them know your wishes at the important time.

Quite often, the will is checked before any funeral decisions are finalised to ensure your wishes are attended to. And, by including confirmation that you're an organ donor, your next of kin will have comfort to approve the donation of your organs.

8. Managing complex circumstances

Life isn't always straight-forward – there may be complexities in your family, financial circumstances, businesses etc. The great thing is that your will can be customised to accommodate your specific circumstances. The best way to ensure this is to consider, consult and discuss the circumstances with a solicitor or professional will writer. In doing so, you're ensuring your wishes are documented correctly.

Circumstances which may be deemed complex and therefore warrant thorough consideration prior to writing your will include:

excluding someone who would normally expect to benefit from your will
previous marriage/divorce or other family complexities
providing for a beneficiary with special needs
having a self-managed superannuation fund
being a company director

Be sure to explain these specific circumstances to the will writer; for example, why you may wish to exclude someone or leave a particular person a lesser share than they may expect to receive. This information may be kept on file and referred to if a claim is made against your estate.

We strongly recommend that you seek the advice of a specialist will writer when your circumstances are not entirely straightforward to ensure your wishes are correctly recorded.

9. Accountant / financial planner details

Seek out the most up to date details of your financial professionals – your accountant and financial planner. Make note of this contact information in a document to be stored with your will. Your accountant and financial planner's details are required so that your executor can contact them after your death to confirm financial details.

By providing these details, you'll make your executor's role that little bit simpler.

10. Enduring powers of attorney

When you make your will, you can also consider preparing your powers of attorney.

An enduring power of attorney allows you to appoint another person to make decisions for you when you are unable to make decisions yourself. It allocates the responsibility to another trusted person, chosen by you, to make decisions on your behalf. This might mean managing your financial affairs, or making certain personal decisions for you.

You can prepare an enduring power of attorney when you prepare your will.

Options for writing a will

There are two main options for writing your legally binding will – with assistance from a professional will writer or by using a do-it-yourself kit.

If your circumstances are simple, then a do-it-yourself kit is an easy and convenient way to write your will. From the convenience of home, you can buy a State Trustees Legal Will Kit online or obtain a hard copy of the will kit from Australia Post stores in Victoria.

If your circumstances are complex, you should take advantage of the expertise of a will writer.

State Trustees, the organisation that writes most wills for Victorians, have will writing services throughout Victoria serviced by professional will writers. View all our locations here.

You can book your appointment online or call us on 03 9667 6444 or outside Melbourne 1300 138 672

Luckily, creating a basic will has never been easier than it is today. In as little as 30 minutes, you can create a will yourself using our Online Will.

Do you need help or advice?

If you have any questions about preparing for your will appointment or writing your will, we're here to help. Phone us on 03 9667 6444 or outside Melbourne call 1300 138 672.

This article was written by Leigh Cunningham, State Trustees Will Writer and Alicia Foreman, State Trustees Content Marketing Specialist.

You may also be interested in:

Common mistakes when making a will
Wills & Powers of Attorney Dictionary
Simple will vs complex will
Will asset list template