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Wills

What is a Will?

A Will is the legal document which takes effect after a person dies. It is a unique and clear record of a person’s wishes. A Will must be in writing. It may be handwritten, typewritten or a combination of both. It must be dated and signed by the person making the Will as well as two, preferably independent, witnesses.

Why have a Will?

Making a Will is the only way to ensure a person’s assets will be distributed according to their wishes. This may save family and friends unnecessary hardship and heartache. When a person makes a Will, they can select the executor of their choice.

What happens if I don’t have a Will?

If a person dies without making a Will, they are said to have died ‘intestate’. An administrator, not necessarily of the person’s choice, will take control of their affairs and distribute the assets amongst relatives, in accordance with a statutory formula set out in the Administration and Probate Act. This may not be according to the deceased person’s wishes. After the Administrator pays the debts of a deceased person, the estate is divided between relatives. Sometimes this means homes and other assets must be sold to ensure an equitable distribution. Most people don’t realise, that a person’s assets may not automatically pass to the deceased person’s spouse or partner. Leaving no Will usually means that estate administration can take longer and expenses may be more costly for dependants.

What is an Executor?

An executor is the person or trustee organisation chosen to carry out the instructions in a person’s Will. The executor is responsible for the entire administration of an estate, until the final distribution of assets is made to the beneficiaries.

Who can make a Will?

Any person is legally able to make a Will after attaining the age of 18 years, provided they are of sound mind. Special provisions under the Wills Act enable some minors to make a Will.

Does separation or divorce revoke a Will?

Separation does not revoke a Will, however if a person no longer wishes a spouse or de facto spouse to be a beneficiary, they should update their Will.

Divorce revokes certain aspects of a Will. Upon termination of a marriage, any beneficial gift in a Will in favour of a former spouse will fail, however gifts to other beneficiaries in the Will will not fail. A new Will should be considered by both parties.

What to consider when making a Will

One of the important functions of a Will is the naming of an executor. This is the person or organization responsible for the collection and distribution of the deceased person’s assets. A Will should give clear instructions on the division of a person’s assets and name beneficiaries. Instructions should also be given as a back-up, should the named beneficiaries die prior to the person making the Will. If the person making a Will has children under the age of 18 years, a guardian may be named, although this is not enforceable by law. Specific funeral arrangements can be outlined in a Will, however many people choose to leave these instructions with family and loved ones. This is quite appropriate.

Why use the Public Trustee as Executor and Trustee?

How do I make an appointment to have my Will made?

To make an appointment to have your Will made please ring 8999 7271. Once a time and date has been allocated, a Personal Details for Will Instruction form will be sent to you for completion and return at your appointment.

Where can I safely store my Will?

Your Will can be permanently stored with the Public Trustee in a specially maintained and gas fitted, fire resistant vault which is FREE of charge.

What legislation is applicable?