Making a Will is the only way to ensure that a lifetime's work is passed on to the people you choose. It provides security for those who are close to you and for those you are responsible for, and may avoid unnecessary difficulties upon your death.
Your Will may be used to provide for the guardians of your children (under 18 year olds) and to arrange for their maintenance and education.
Should you die without a Will (intestate) your estate may be divided according to a Government formula (the laws of intestacy) - a formula that may not reflect your wishes, and which may cause undue hardship, cost and delay for your family.
Eligible family left out of a Will may bring an action for greater provision under the Family Provision Act 1969.
Making your Will: You can start to make your Will online now or fill out the online form (below) to make an appointment with one of our experienced team members.
Please note: This is a Fact Finder in advance of your Will interview and is not an online Will.
Where should I keep my Will?
Your Will should be kept in a safe place. When the Public Trustee and Guardian prepares your Will, the original Will is retained in safe custody at no cost, and a copy is provided to you.
When should I make changes to my Will?
If your personal circumstances change eg you become married or divorced, have children, travel or acquire new assets, you are advised to make changes to your Will. If you get married, the existing Wills of both parties are automatically revoked, unless made in contemplation of marriage.
It is important to update your will after marriage, divorce or if you are living in a de facto relationship.
Who should be your executor?
Your executor should be aware of his/her legal responsibilities, and is able to devote the necessary time to the management of the affairs or your estate.
Acting as executor can be demanding, requiring an understanding of complex legal, financial, accounting and taxation matters.
If you choose an executor who is less than able, or who dies before you, this may unduly complicate the administration of your estate.
The duties of an executor include -
- locating the Will;
- ascertaining and securing assets;
- proving the Will in court;
- discharging debts;
- establishing trusts;
- preparing income tax returns and attending to capital gains issues; and,
- distributing and transferring assets according to the terms of the Will
Same sex couples
Same-sex marriages are currently not permitted under Australian federal law and in 2004 the Marriage Act 1961 was amended to expressly state that unions between same-sex couples entered into outside Australia are not to be recognised as marriage in Australia.
However, all states and territories in Australia recognise cohabiting same-sex couples as 'de facto couples', which gives them the same rights as cohabiting heterosexual couples. The Australian Capital Territory is currently the only jurisdiction in Australia which also maintains a civil partnership registry under the Civil Partnership Act 2008.
However, even with these measures, without a valid Will, same-sex couples risk having their assets pass to family members instead of their partners upon their death.
The intestacy laws (the laws that govern distribution of assets when there is no valid Will) may also treat a same-sex spouse as a mere stranger, bypassing that person in favour of a blood relative. By executing a Will, same-sex couples can ensure that no matter where they die, their spouse will receive all to which the spouse is entitled upon their death.
A clause in a Will which clearly defines their relationship to their same-sex partner provides stronger evidence of the testator's intent to be considered as a couple, regardless of the laws of the state or territory in which they reside. Moreover, a carefully prepared Will, which sets out the testator's intentions clearly, may also deter a challenge by a disgruntled family member.
The Will can also allow same-sex couples to appoint each other as guardian for their minor children in the event of death. The guardianship clause is particularly helpful if a same-sex partner moves to a state or territory hostile to civil union/adoption by same-sex couples.
Please note that superannuation benefits usually do not fall into and form part of an estate. Since 2004 the Superannuation Industry (Supervision) Act 1993 allows tax free payment of superannuation benefits to the surviving partner of interdependent relationships, which includes same sex couples, or a relationship where one person is financially dependent on another person.
Having a properly executed Will with explicit language about same-sex couples' relationship to each other and their testamentary intentions may provide clarity to an otherwise complex and challenging state of affairs. The Public Trustee and Guardian provides Will preparation services for same-sex couples.
The Public Trustee and Guardian is trustee for GreaterGood (The Capital Region Community Foundation) and recommends the foundation to persons wishing to support charitable causes through their Will.
GreaterGood is a not-for-profit charitable entity with tax-exempt status established to benefit and strengthen the Capital Region. GreaterGood also provides a convenient structure to implement your charitable testamentary wishes.
The foundation is a permanent and growing source of funding for charitable activities.
The Public Trustee and Guardian's fees are set by Determination of the ACT Attorney-General as responsible Minister.
A minimal fee is payable at the time of drafting your Will. When your assets are distributed, your estate will be charged a percentage of its gross value.
Joint tenancy assets attract no commission.