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Wills Law

Making a Will in NSW

Probate Law

Making a will in New South Wales involves making a written declaration describing how your property are going to be disposed of after your death. this enables you to go away your assets and the other possessions to which you're entitled at the time of your death to nominated beneficiaries. When an individual dies without a will, their property is disposed of supported a statutory formula.

Upon your death, the executor you've got laid out in your will applies to the Supreme Court for probate, meaning they're going to receive title to your property and eliminate it in accordance together with your will.

The legal requirements for creating a will in New South Wales are strict; it's recommended that you simply have a lawyer assist you with writing your will. The NSW Trustee & Guardian, a government body, will write your will for free of charge for you if you appoint them as your executor, during which case they're going to charge fees for administering your estate.

The rules for creating a will in New South Wales are contained within the Succession Act 2006.

Legal requirements for creating a will in New South Wales

If you do not have a legitimate will, you'll die as an 'intestate'. this suggests your property will be distributed amongst your relatives (or to the State itself) supported a formula within the Succession Act 2006 (NSW).

You must satisfy variety of legal requirements when making a will in New South Wales so as for your will to be valid. If you are doing not satisfy all of those requirements, the Supreme Court should conclude that a document is your will if, having reference to any evidence concerning the execution of that document or your testamentary intentions, it's satisfied that you simply intended for that document to be your will.

the requirements are:

  1. you must be a minimum of 18 years aged . Minors can make a will if they're married or the Supreme Court authorises them to form a will, which it'll only do if it's satisfied they understand what a will is, the proposed will reflects their intentions, and it's reasonable to permit the desire to be made.
  2. the will must be in writing and signed by you.
  3. two witnesses must have watched you sign the desire , and have also attested and signed the desire themselves.
  4. you must have 'testamentary capacity' to organize a will, meaning you understand the effect of a will, you recognize what assets you own, you are doing not have a psychological state issue affecting your ability to form rational decisions and you recognize who would likely expect to be named in your will as a beneficiary. If you are doing not have 'testamentary capacity', then the Supreme Court can order a will to be made on your behalf.

Creating testamentary trusts

When making a will in New South Wales, you'll provide for the creation of testamentary trusts, typically together with your executor acting because the trustee. this will be done as an alternate to creating outright ('specific') gifts to your nominated beneficiaries.

You can nominate which of your assets are persisted trust for the advantage of your nominated beneficiary. The terms of a trust may then provide for the trustee to distribute the income and/or the capital from the trust to your beneficiaries.

The legal title to the assets persisted trust doesn't pass to the beneficiary. This helps protect your assets (for example, from the creditors of beneficiaries) and has tax advantages.

Choosing your executor

The executor appointed under your will manages your estate for you after you die, which incorporates tasks like organising your funeral, collecting your assets and distributing them to your creditors and your beneficiaries. they're subject to numerous legal obligations both under the common law and under statute, including the Trustee Act 1925 (NSW). for instance , executors are obliged under the common law to ‘get in’ your assets and pay expenses before distributing the residue in accordance together with your will.

Your executor are often a lover , a relative or knowledgeable executor entity just like the NSW Trustee & Guardian. Your solicitor also can act as your executor, but they're subject to legal professional standards and intrinsically could also be reluctant to comply with the appointment.

You should consider your proposed executor’s age, willingness to require care of your estate, relationship with the beneficiaries and skill to hold out the duties of an executor before appointing them.

How does marriage affect my will?

If you marry after making a will in New South Wales, your will is revoked. However, if it's stated within the will that it had been prepared in contemplation of your marriage, then it'll not be revoked. Distributions to your spouse at the time of your death also will not be revoked.

Divorce won't end in your will being revoked; however, those parts of your will providing for distributions to be made to your former spouse, or appointing your former spouse as an executor, trustee or guardian are going to be revoked (provided there's nothing to suggest a contrary intention).

Children

If you've got children who are under 18, you'll appoint somebody in your will to be their guardian after you die. Children also can be appointed as executor of your will, but if they're but 18 years aged once you die, then administration of the desire could also be granted to their guardian.

If you've got multiple executors and one may be a minor, the grant are going to be made to the opposite executors and therefore the minor can apply for probate once they reach 18 years aged .

If you've got children and don't make a legitimate will, your whole estate will pass to your children equally if you are doing not have a spouse. If you furthermore may have a spouse, and people children are the youngsters of your spouse, then your spouse is entitled to your whole estate.

What if I don’t nominate certain relations as beneficiaries?

You are not legally required to nominate members of your family as your beneficiaries. However, if you are doing not nominate someone who may be a close member of your family or an individual with whom you had a de facto relationship in your will, they'll apply to the Supreme Court for a ‘family provision order’ for further provision from your estate.

Such an order generally can't be made in reference to property that has already been distributed by your executor.

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Aoife O'Donohoe

Aoife O'Donohoe

Solicitor | Sydney