Wills are important for a variety of reasons:

• It puts in writing your intentions as to how your estate is to be managed and distributed
• If you have younger children, you are able to appoint a suitable guardian of your choice to take care of them
• You may wish to leave particular items to certain people or possibly even donate a portion of your estate to charity
• You may wish to ensure that certain family members are adequately provided for, especially if your family situation is complicated
• To prevent there being any potential disputes over your estate
• It will prevent unnecessary expenses and delay for your family when your estate is administered

If you die without having a Will, the law describes such a scenario as having died ‘intestate’. Ultimately, it means your property and possessions may not be distributed as you would like.

If you die without having a Will in New South Wales, an individual will be appointed as an ‘estate administrator’. They will take responsibility for distributing the estate in accordance with the rules of intestacy. These rules dictate that an estate is distributed according to a hierarchy of “next-of-kin” — first your spouse, then children, then grandchildren and so on. There are also laws outlining in what proportions each eligible beneficiary is to receive certain property.

For many, such an outcome is not ideal. To ensure that your estate is distributed exactly as you wish, Galluzzo Lawyers recommends that a Will is drafted as soon as possible.

After an individual has died, the executor of their Will is responsible for carrying out the deceased’s wishes as stated in the Will. It is their duty to manage the estate and protect the assets of the estate.  In doing so, the executor must comply with various laws and rules which govern the administration of deceased estates.

Whomever you wish. It can be a spouse, your children, siblings, friends, and you’re your lawyer. You can appoint more than one executor and an executor can also be a beneficiary of the will as well.

Your Executor will have to:

• Identify all of your assets and liabilities,
• If property is involved, obtain a Grant of Probate (if required)
• Pay any outstanding debts from your estate
• Distribute your estate as laid out in the Will
• Should your Will be contested, then your Executor has a legal duty to defend the Will.

A beneficiary is anyone who you select to receive assets out of your estate. You can choose whomever you wish to be a beneficiary, including a spouse, children, grandchildren, siblings, friends and even a charity.

Yes, you can change your Will. Galluzzo Lawyers recommends that should you wish to amend your will, you should prepare an entirely new document, ensuring it is witnessed properly.

Yes, certain individuals are able to contest your will if they believe they have been unfairly left out. Most commonly, this includes children. Not all relatives are eligible though. Claimants have a set period of time within which they can make their claim. They must also prove they are eligible to claim against your estate, and have a need for such a provision out of your estate. See Contesting a Will for more information.

You should review your Will every couple of years to make sure it still reflects your wishes. You should also review your Will if a change of circumstances means your intentions have changed regarding your estate. Such circumstances include:

• Change in your relationship status (marriage, divorce, separation);
• You buy/ dispose of a significant asset such as a house or a business;
• You have a child;
• An executor or beneficiary identified in your original Will dies; or
• You wish to change an executor or beneficiary identified in your original Will.

Marriage revokes a Will, unless there is a provision in the previous Will in contemplation of marriage.

You must revise your Will if you get divorced as a divorce automatically revokes all previous Wills.

A beneficiary must survive you by 30 days to be entitled to inherit. This means that they must live for at least another 30 days after you have passed away in order to still inherit from the Will. Sometimes a Will may also state that a beneficiary must reach a certain age before they can inherit.

If the beneficiary fails to survive that 30-day period or they fail to attain that age, then the gift to them will fail, and it will generally be split among the remaining beneficiaries.

There is an exception to this general rule if the deceased beneficiary is your child. In that scenario, if the deceased child themself has a child or other descendant who survives you and is old enough, then the gift will not fail, and it will pass to those children instead.

Even after death, your debts will still need to be paid.

An important responsibility of your executor is to make sure all of your debts and liabilities are paid and discharged before your assets are distributed to your beneficiaries.

Debts are usually paid out from your residuary estate (i.e. assets within your estate which have not been specifically gifted to a beneficiary). If, however, there remains insufficient assets in the residuary estate to pay off your debts, any specific gifts you have made in your Will may be liable to meet any remaining debts.

There is an exception to this rule in relation to secured debts, the most common example of this being a mortgage. If, for example, you gift a house with a mortgage attached to it to a beneficiary, then the beneficiary inherits both the house and the debt. It is not paid from your residuary estate. This exception, however, can be specifically avoided in your Will should you wish.