Last Will and Testament

Last Will and Testament

Your Last Will and Testament is an integral part of your legacy – and definitely not a document where you want to cut corners.

This do-it-yourself document generator was developed with leading estate planners, and is designed to help you draft a comprehensive Last Will and Testament that ensures the distribution of your estate to your family and loved ones is streamlined and straightforward.
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Last Will and Testament

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How does it work?

Our intuitive tool will guide you through the process step-by-step from start to finish. It’s quick, easy and simple to understand – just how legal documents ought to be.

The expert interview wizard will help you answer a few questions and prepare your document in the background. You’ll have your custom Last Will and Testament in 25 minutes or less.

When you’re done, print or download a PDF versions for you to review, customise or sign. If you have any questions, our team of legal experts is on standby to lend a hand.

What is a Last Will and Testament?

A Last Will and Testament is a legal document that specifies what happens to your estate after you die.

A Will is the essential component in estate planning. It outlines how your estate will be distributed after you pass away, and it’s also where you leave important instructions about who will take custody of children or pets, who will take over businesses, and more.

Our cutting-edge tool has been meticulously designed in consultation with leading Australian estate planning experts to provide tax and asset protection. It’s also been cleverly designed to minimise the potential for family law claims and disputes between beneficiaries.

When should I use the Last Will and Testament?

Research from the NSW Trustee and Guardian shows that people don’t prepare wills because they don’t have anything to leave behind like real estate or businesses. But small items like jewellery, life insurance policies, ageing parents, pets and more are part of the things that will need to be accounted for if you die.

A Last Will and Testament is part of your estate planning. Life can throw curveballs at you so, it’s best to be prepared early. You can start making your will at 18 and review it when your wishes change.

What topics does the Last Will and Testament cover?

  • Definitions and interpretation
  • Last Will and Testament
  • Executor
  • Guardianship
  • Payment of debts and expenses
  • Eligibility Criteria and substitution of Beneficiaries
  • Whole Estate
  • Personal items
  • Beneficiary Support Trusts
  • Rights of Occupancy
  • Life Interest Trusts
  • Testamentary Discretionary Trusts
  • Adjustment of Entitlements
  • Powers of Executors
  • Self-managed superannuation fund
  • Funeral directions
  • Important notices
  • Governing law and jurisdiction

What are the main decisions I need to make in creating a Last Will and Testament?

    • Do you want to give the executor/trustee the power of adjustment? This Will can give the executor/trustee the power to adjust the proportionate distribution of the estate assets, taking into account both the proportionate distribution of such non-estate assets and the overall tax implications.
    • Do you want to leave the whole estate to one or more beneficiaries in one go? Choose no if you want to make any specific gifts of major assets. If you choose yes, you can still create special trusts and make specific allocations of personal effects by attaching a list to the will. 
    • Would you like to include instructions regarding your final resting place and arrangement? You may specify instructions for the disposal of your body in a separate list to be signed and stored with the will. This can make it easier to change later. This list should include instructions regarding organ transplantation and use for medical research.
    • Will you nominate a backup for the main substitute executor/trustee? A second-level backup must be an individual or the public trustee.
    • Do you want to pay your executors/trustees? If so, this will be in addition to any gifts that they may receive under the will and any fees to which they might be entitled for providing any professional services in relation to administering the will.

What other names does Last Will and Testament Go by?

  • Will
  • Last Will
  • Will and Testament
  • Testamentary Discretionary Trust
  • Testamentary Trust
  • Complex Will
  • Long Form Last Will and Testament
  • Personal Will
  • Personal Will with Testamentary Discretionary Trust
  • Personal Will with Trust

Frequently Asked Questions

The parties are you (the Testator), the beneficiary, and up to three executors or trustees who will be responsible for administering and executing your will and estate.

You’ll need this document to :

  • organise your assets and decide how to distribute it when you die;
  • ensure that your assets are used as you intend;
  • place conditions on the beneficiaries;
  • protect your assets and reduce the amount of tax beneficiaries might have to pay.

Wills are legally binding at 18 so you can begin preparing yours at any stage of adulthood.

You will need the following information:

  • Parties: Particulars of the Testator, Executors and Beneficiaries, including names, addresses, ACN for companies, and ABN where applicable.
  • Assets breakdown: Details of all your assets and personal effects and how you want them to be used and distributed.
  • Beneficiaries: Specify who are the beneficiaries and if they can be substituted for.

Marriage

Unless a will expressly states that it is made “in contemplation of marriage”, the Will may become invalid upon your marriage.

Divorce

In some states/territories, divorce may invalidate the entire Will, or invalidate gifts to the divorced spouse or an appointment of the divorced spouse as executor.

In this will, a beneficiary can be:

  • a specifically named individual; or
  • a charitable organisation.

For an individual to be able to receive a gift under the will, he/she must:

  • be living (including conceived but not yet born) on the date of the testator’s death;
  • survive the testator by at least 30 days; and
  • attain a specified minimum age.

If an individual survives you by at least 30 days but has not yet attained the specified minimum age, the gift will be held on trust for that individual until he/she reaches the specified minimum age.

Whole estate

You can choose to allocate the whole estate to one or more beneficiaries (in equal or unequal shares) in one go.

Specific gifts and residual estate

Instead of allocating the whole estate in one go, you also can choose to:

  • allocate some specified assets to particular beneficiaries; and
  • leave the balance – called the “residual estate” – to one or more beneficiaries.

To allocate any specific gifts, you need to name at least 2 beneficiaries in the will.

You can give specific gifts of the following asset types:

  • money;
  • real estate;
  • other assets (which you can described in free text); and/or
  • personal chattels (ie, personal effects, sentimental items, etc).

We’ll refer to these as “specific gifts” or “gifts of specified assets”, as opposed to gifts of the whole/residual estate.

Charitable gifts

You will also be given the option to leave one or more monetary gifts to charity. This option is available even when choosing to leave the whole estate to one or more beneficiaries in one go.

Any assets held in:

  • superannuation accounts;
  • a self-managed superannuation fund; and/or
  • a separate family trust,

will not form part of the estate assets to be distributed under this will.  

You can choose how to allocate the shares in any corporate trustee of a separate family trust later in this form.

 

You will need a separate nomination telling your super fund to pay the death benefit to your executor.

Yes, but you must get independent legal and taxation advice about the implications of using this will in relation to overseas assets 

You may need to create a separate will in each jurisdiction and, if so, the interplay between the separate wills must be carefully considered.

If you decide to get legal advice, please get in touch with us

If a nominated beneficiary dies before you and a gift to that nominated beneficiary cannot be allocated to any substitutes, then it will form part of the residual estate.

If, for whatever reason, the residual estate cannot be allocated to any of the nominated beneficiaries or their substitutes, then you need to specify one or more “reserve beneficiaries” who can step in to receive the assets of the residual estate, to avoid intestacy.

A typical example is where the whole estate is left to a spouse “per stirpes” (ie, with automatic substitution to the lineal descendants of the spouse) but the spouse dies before you and leaves behind no lineal descendants. In that case, the “reserve beneficiaries” may be your siblings.

Yes. You can expressly exclude people and outline why they have been excluded

Broadly speaking, this may include anyone you are responsible for, potentially including a current or former spouse or de facto partner, children, grandchildren, other dependants and persons living in your household.

There is no guarantee that any particular reasons will be acceptable.  The following are some examples of reasons that might potentially be considered valid:

  • sufficient provision was made for the excluded person during your lifetime such that further gifts would be unfair to the included beneficiaries;
  • you and the excluded person have had no contact for a long time and no relationship of love/affection exists between them;
  • You haven’t had any responsibility for the welfare of the excluded person for many years;
  • the financial circumstances of the excluded person are much better than those of the included beneficiaries and the excluded person is being excluded in order to try to achieve a balance of financial welfare amongst all potentially interested parties; and/or
  • the excluded person has received, or is likely to receive, significant assets from the estate of another person (eg, a former spouse of the testator; a former spouse of the testator’s spouse, etc).

You should consider whether putting in a place a buy/sell agreement is necessary or desirable.  

Under a buy/sell agreement, insurance policies are taken out to cover the death or disablement of each co-owner.  

Then, if a co-owner dies or becomes incapacitated, they are deemed to offer their stake for sale to the remaining co-owners and the proceeds of the relevant life insurance policy can be used to fund the purchase of that stake by the remaining co-owners.

One way this document can help you do that is by including a general power of adjustment that enables the executor/trustee to make adjustments to the allocations and entitlements under the will where the executor/trustee reasonably believes that making the adjustments will better reflect the testator’s intentions as to the proportionate distribution of both the estate assets and non-estate assets (eg, assets held in superannuation accounts, a self-managed superannuation fund and/or a separate family trust), on an after-tax basis.

However, this general power of adjustment will not give the executor/trustee the power to add new beneficiaries who aren’t already included in the will.

The executors/trustees are responsible for:

  • applying for probate (a court order allowing the will to be administered);
  • notifying the beneficiaries of their entitlements;
  • gathering and distributing the assets in accordance with the will;
  • ensuring that the testator’s debts, taxes and funeral expenses are paid;
  • managing any assets that are held on trust for beneficiaries pursuant to this will until those trusts vest; and
  • preparing the related accounts and tax returns.

An executor/trustee may be an individual over 18 years of age, an appropriately licensed trustee company or the Public Trustee.  

You may wish to appoint your solicitor, accountant and/or financial planner as your executor/trustee.

There are several signing options available. How you sign largely depends on where the parties are located and if they will attend signing together. You can print on paper and sign, or use electronic signature tools such as Docusign or Hellosign.

If you need legal advice or assistance, we would be happy to help. Contact us now.

This is a DIY document service – not a legal service – so if you are uncertain about the documents, we do not recommend signing them.    

Please contact us directly and we would be happy to assist.

Absolutely! Get in touch with us and we can provide a fixed-fee price to review it.

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