A will is a written document that sets out how the will-maker wants their property and possessions (their estate) divided after their death. Many people first come across the law relating to wills when they have to make a will of their own. For others, it is when they are appointed executors or trustees of an estate and have to manage the affairs of someone who has died.
Making a will is not an act of 'giving up' on life. It is the positive process of creating a legal document in which you formally specify:
- the people who matter to you and how you want to provide for them when you die (the beneficiaries)
- any specific items you wish to give
- the person you trust to carry out the instructions in your will (the executor)
- any other instructions you may have (for example, specifying whether you would like to be buried or cremated).
There are many formal requirements to be aware of when you are making, changing or contesting a will.
In NSW, the legislation dealing with the formal requirements of making a will is now contained in chapter 2 of the Succession Act 2006 which commenced on 1 March 2008.
Why make a will?
Everyone over 18 should have a will. It is the only way to make sure your estate is distributed in the way you wish. A will may also make life easier for family and friends after your death. When someone dies, all existing arrangements with or on behalf of that person - for example withdrawals from accounts or transactions carried out under a Power of Attorney usually cease. Accounts in a sole name are usually frozen on death except for payment of funeral expenses. Having a will may make it easier for beneficiaries to gain access to funds, particularly in a small estate where probate may not be required.