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Last Will and Testament: Properties You Should Not Include

Writing a last will and testament is a responsible decision to make. Your ‘will’ ensures that all your assets and belongings will be taken care of after you pass away. But did you know that not all property can be bequeathed through a last will and testament?

There are certain types of property that you should not include as they can cause problems for your beneficiaries or they may not be able to be distributed according to your wishes. 

For a quick overview, here is a short guide about writing your last will and testament.

What Is a Last Will and Testament?

A last will and testament is a written legal document containing records about a person’s instructions and wishes regarding the distribution of their properties after they die. All the legality, validity and confidentiality of a will are taken care of by the person’s trusted family lawyer or law firm.

For a will to be valid, it must have the following requirements:

  • In written form
  • Bears the testator’s (the person who made the will) signature
  • Witnessed by two people, neither are beneficiary nor spouse of the testator
  • Bears the signatures of the witnesses
  • The testator is in sound mind, memory and understanding.

Why Do You Need to Make a Will?

Thinking about death is terrifying to most people, but let us face the fact that all of us are going to go. Making a will makes death less fearsome. It gives you the assurance and peace of mind that your possessions will be well distributed to your loved ones.

Contrary to what many people believe, a last will and testament is not only for well-off individuals but for anyone who wishes to write one. Everyone over the age of 18, regardless of economic status, is highly encouraged to make a will before they die.

Making a will is not expensive, either. In Australia, there are affordable options, such as a law firm website that offers cost-effective assistance on family law. Another option is to have a public trustee available in your state, but this option typically needs to be checked by another solicitor who charges additional fees.

Important Things to Consider Before Writing a Will

Before you write your will, consider the following essential things:

  1. Your children’s guardian—Carefully think about who can take care of your children (or even pets) after you pass. The guardian must be trustworthy and one you believe is capable of loving and caring for your children as much as you do.
  2. Assets—Make an inventory of all the things that you own that may be of high monetary value. 
  3. Cherished possessions—You also need to list down all of your possessions, big or small, that you dearly cherish or those with sentimental values.
  4. Executor—Your executor is an individual you chose to be in charge of looking after the distribution of your assets and someone who will make decisions on your behalf. Choose at least two executors in case one will not be capable in the future.
  5. Beneficiaries—Your beneficiaries are the ones who will receive your belongings.
  6. Charities and donations—You may also consider giving a part of your assets to charities or organisations you support.
  7. Funeral instructions—Include your funeral instructions into your will so that your family can carry them out at your funeral.
  8. Complexities—Find solutions for future complex circumstances such as previous marriages or divorces and other family complexities.
  9. Financial details—Entrust all your financial details to an accountant or professional financial planner to make your executor’s job easier.
  10. Enduring powers of attorney—You will need the assistance of a family lawyer to make enduring powers of attorney. This allows you to legally appoint another person to make decisions on your behalf.

How to Write a Will in Australia?

You can write your own will by the following steps:

  1. Start with the title (‘Last Will and Testament’).
  2. Then write the date when you wrote it ( ‘This Will dated …’).
  3. Put in your full name, address and occupation (‘Is made by me …’). 
  4. List the full names of your executors, with their addresses and relationship to you.
  5. Start listing your assets and their respective recipients (your beneficiaries) starting with non-monetary gifts.
  6. Do the same with monetary gifts and charity donations.
  7. Include the full name of your primary beneficiary, their address and their relationship to you.
  8. List the full names of your two witnesses, with their addresses and their occupations.
  9. Put your signature in your will in the presence of the witnesses and write your initials on each page.

What Should You Include in Your Will?

You must include all your assets and debts in your will. This includes:

  • Assets under your name.
  • Future assets from investments or insurance.
  • Mortgages and any outstanding loans.
  • Business interest or partnership.
  • Joint assets with a spouse or domestic partner.
  • Properties outside the country.
  • Secured assets.
  • Resolved life insurance benefits. 
  • Business assets.
  • Superannuation benefits.

What Should You Not Include In Your Will?

It’s important to understand that not all property can or should be included in a last will and testament. Certain types of assets are better suited for other estate planning tools, such as trusts.

Here are some examples of properties you should not include in your will:

  • Property held in joint tenancy: In case that you co-own an estate or a property with someone else, regardless of what you state in your will, the property is automatically passed to the other person when you die. Therefore, it is best not to include this property in your will. 
  • Retirement accounts: Your retirement account will usually be passed on according to the beneficiary designation on the account paperwork. 
  • Property held in a living trust: If you have transferred ownership of any property into a living trust, it will not be passed on according to your will. 
  • Pets: Unless you specifically include provisions for them in your will, pets typically go to the closest relative or friend who is willing and able to care for them. 
  • Cemetery plots: Cemetery plots are usually owned by the cemetery company, so they are not passed on through your will. 
  • Digital assets: In Australia, there is currently no law that addresses what happens to your digital assets when you die. Therefore, it is safe to say that you should not include them in your will.

Who Should Know About Your Will?

Aside from yourself, these people should know about your will:

  • Family lawyer
  • Your executors
  • Witnesses.

Can You Make Changes to Your Will?

You are free to make changes to your will, especially when certain circumstances change, such as divorce, death of a beneficiary or when you remarry or bear another child.

To do that, you need to make a legal document stating all changes you wish to do to your will. The document is called a codicil. You will need to sign the codicil in the presence of two witnesses and a family lawyer.

How Madison Marcus Can Help You

A family lawyer plays a major role in making your last will and testament legal and binding. They provide professional help in writing your will.

Get consultation from the leading law firm in Australia, Madison Marcus. We offer cost-effective assistance on family law, including writing a will. We also provide other affordable legal advise and services for your personal or business needs.For all enquiries, contact us here.


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