Many people associate Wills with old age, serious illness or substantial wealth. In reality, a Will is relevant to almost every Victorian adult.
A Will records who should receive your estate, who should administer it and how particular responsibilities should be handled after your death. Without a valid Will, Victorian intestacy law determines who receives your estate, regardless of informal promises or assumptions within the family.
Preparing a Will can reduce uncertainty, improve estate administration and give you greater control over what happens to your assets and responsibilities.
A Will determines who receives your estate
A valid Will allows you to identify the people or organisations that should receive your assets.
These may include:
- a spouse or partner;
- children or grandchildren;
- relatives;
- friends;
- charities;
- community organisations; and
- other people who are important to you.
You can make specific gifts, divide the residue of your estate in stated proportions and provide alternatives if a beneficiary dies before you.
Without a valid Will, the estate is distributed according to statutory intestacy rules. Where a person dies without a valid Will, legislation determines who is entitled to share in the estate.
Those rules may not reflect your personal relationships, family expectations or intended priorities.
You can appoint an executor
A Will enables you to appoint an executor.
The executor is responsible for administering the estate, which may involve:
- locating and protecting assets;
- applying for probate;
- paying debts and taxation;
- maintaining estate accounts;
- dealing with claims;
- transferring or selling property; and
- distributing the estate to beneficiaries.
Choosing an appropriate executor is important. The person should be trustworthy, organised and capable of dealing with financial, legal and family matters.
You can appoint more than one executor and nominate substitutes in case your first choice dies, loses capacity or does not wish to act.
Where there is no valid Will, an eligible person may need to apply for letters of administration. That process can create additional uncertainty about who should manage the estate.
Parents can record guardianship wishes
Parents of children under 18 can use their Wills to record who they would like to care for their children if both parents die.
A testamentary guardian appointment does not remove the Court’s ability to make decisions based on the child’s best interests. However, it provides important evidence of the parents’ wishes.
The Will can also establish trusts to manage a child’s inheritance until a specified age.
Without suitable provisions, a child may become entitled to inherited assets at an age the parent considers too young. A carefully drafted Will can allow funds to be applied earlier for education, housing, health and general support while postponing direct control of the balance.
Young adults also need Wills
A person does not need to own a house or have children before making a Will.
A younger adult may already have:
- bank savings;
- a motor vehicle;
- investments;
- superannuation;
- life insurance;
- digital assets;
- cryptocurrency;
- business interests;
- valuable personal items; or
- rights under a trust or deceased estate.
They may also want to benefit a partner, sibling, friend or charity who would not necessarily receive anything under the intestacy rules.
Life circumstances can change quickly. A serious accident or unexpected illness may occur before a person has accumulated substantial wealth.
Parke Lawyers provides further guidance on why every Victorian adult needs a Will.
A Will can address business interests
Business owners should coordinate their Wills with their broader succession arrangements.
A Will may need to address:
- company shares;
- partnership interests;
- loans to or from the business;
- intellectual property;
- business assets owned personally;
- control of related companies;
- guarantees;
- buy/sell arrangements; and
- the funding of ownership transfers.
A Will cannot necessarily control every business or trust asset. Company constitutions, shareholder agreements, partnership agreements and trust deeds may contain separate succession rules.
Business owners should therefore review the estate plan and business structure together rather than assuming the Will alone will determine what happens.
Not every asset passes under a Will
A Will governs assets that form part of the deceased estate, but not every asset necessarily does.
Examples requiring separate consideration include:
- jointly owned property;
- superannuation death benefits;
- life insurance paid directly to a nominated beneficiary;
- assets held in a trust;
- company-owned property; and
- accounts or investments with survivorship arrangements.
Jointly owned property may pass automatically to the surviving joint owner. Superannuation is generally dealt with under the fund rules and any valid death benefit nomination.
A complete estate plan should therefore consider the Will, superannuation nominations, asset ownership, trusts, companies and insurance arrangements together.
De facto and blended families require care
Modern family structures can make intestacy outcomes especially complicated.
A person may have:
- a current spouse;
- a de facto partner;
- children from an earlier relationship;
- stepchildren;
- estranged relatives;
- financially dependent family members; or
- competing family expectations.
The statutory distribution may not produce the result the deceased would have chosen.
Blended families often require particular care because the interests of the surviving partner and children from earlier relationships may need to be balanced. A simple gift of everything to one person may not achieve that balance.
A properly considered Will can provide clearer and more tailored arrangements.
A Will can provide for pets
Victorian law treats pets as property rather than beneficiaries capable of receiving an inheritance directly.
A Will can nevertheless identify a preferred carer and provide money to assist with food, veterinary treatment, registration and other expenses.
The proposed carer should be consulted before the Will is signed. An alternative carer should also be considered in case the first person cannot take responsibility when the time comes.
Practical care instructions can be kept in a separate memorandum that is easier to update than the Will itself.
You can support charities and community organisations
A Will can include gifts to charities, schools, religious organisations, medical research bodies or community groups.
The gift may be:
- a fixed sum;
- a percentage of the estate;
- a particular asset;
- the residue of the estate; or
- a gift subject to specified purposes.
The organisation should be identified accurately. Charities can change names, merge or restructure, so the drafting should allow the executor to deal with reasonable organisational changes where appropriate.
A Will can reduce uncertainty and disputes
A Will does not prevent every estate dispute. Eligible people may still bring claims, and questions may arise about capacity, undue influence or interpretation.
However, a carefully prepared Will can reduce avoidable uncertainty by clearly identifying:
- the executor;
- the beneficiaries;
- the division of the estate;
- substitute beneficiaries;
- testamentary trusts;
- guardianship wishes;
- specific gifts; and
- the treatment of particular assets or responsibilities.
Ambiguous or informal arrangements can increase the risk of disagreement and legal expense.
A homemade Will can create problems
Victorian law contains formal requirements for making a valid Will.
Problems can arise where a document is:
- signed incorrectly;
- witnessed improperly;
- altered without following the required formalities;
- ambiguous;
- inconsistent with asset ownership;
- based on incorrect legal assumptions; or
- unable to deal with later changes in circumstances.
A court may sometimes admit an informal document as a Will, but that can require additional evidence, delay and expense.
Professional drafting is particularly important where there are trusts, businesses, blended families, vulnerable beneficiaries, overseas assets or likely family disputes.
A Will should be reviewed
A Will should not be prepared once and forgotten.
Review it after significant events such as:
- marriage;
- separation or divorce;
- beginning or ending a de facto relationship;
- the birth or adoption of a child;
- the death of an executor or beneficiary;
- acquiring or selling a business;
- buying or selling property;
- establishing or changing a trust;
- receiving an inheritance;
- significant changes in wealth; or
- moving assets overseas.
A review does not always require a new Will, but it helps identify whether the existing document still reflects your circumstances and intentions.
Estate planning should also address incapacity
A Will takes effect only after death. It does not authorise another person to make decisions while you are alive but unable to act.
A broader estate plan may also include:
- an enduring power of attorney;
- an appointment of medical treatment decision maker;
- an advance care directive;
- superannuation nominations; and
- arrangements for business or trust control.
These documents address different issues and should be coordinated.
Parke Lawyers assists clients with Wills, testamentary trusts, powers of attorney and succession planning.
Making a Will is about control and clarity
A Will is not only for wealthy or elderly people.
It gives Victorian adults a practical way to decide who should manage their estate, who should benefit and how important family, financial and personal responsibilities should be handled.
The absence of a Will does not mean there is no estate plan. It means the statutory intestacy rules become the plan.
Preparing a valid Will and reviewing it as circumstances change can provide greater certainty for both the will-maker and the people left to administer the estate.
This article provides general information only and is not legal advice. Anyone preparing or updating a Will should obtain advice appropriate to their assets, family relationships and estate-planning objectives.
