I know you don’t want to spend too much time thinking about what will happen after you have passed. So let us make this quick. Below is a 4-step Will checklist of things you need to cover to have a legally binding Will.
- Who is making the Will?
The law needs to be able to clearly identify the Testator, the person who is making this Will. Who is the person documenting their wishes, and to who’s estate this document relates to.
Remember it is very important to include your full legal name – I am looking at you Bob (Robert)! Any other pieces of information you can include to verify that this is your Will is important. In most cases, this is your home address. If you do not want to include the full address you can simply name your suburb.
“THIS IS THE LAST WILL AND TESTAMENT of me Jane Rosie Doe of 1 Begley Street, Adelaide in the State of South Australia.”
“THIS IS THE LAST WILL AND TESTAMENT of me Jane Rosie Doe of Adelaide in the State of South Australia.”
- Who is going to do your bidding for you?
Your Executor is the person you are nominating to have the responsibility for gathering your estate’s assets and to make sure the persons you have nominated benefits from your estate.
There are two main things you need to consider when nominating an executor.
1. Your executor must be an adult at the time of your death. Seeing that it is probably unlikely that you know when you are going to die, just chose an adult to begin with.
2. Your executor must be able and willing to perform this duty at the time of your death. Less risky but again probably not a given. So may nominate alternative executors, i.e. if Bob is unable to do it, ask Sarah! Better yet nominate a Lawyer. Sure they will charge your estate for any work they do but at least you can rest assured knowing that your wishes will be adhered to as you had planned.
“I appoint my Brother Richard Koerstz to be the executor and trustee of this my Will.”
“I appoint my Brother Richard Koerstz to be the executor and trustee of this my Will provided that if my said Brother Richard Koerstz dies before me or during the administration of my estate or is unable or unwilling to be my executor then I appoint as a general substitute my Cousin Jasper Dale Koerstz to be the executor and trustees of this my Will in Richard Koerstz’s place as the case may be.”
- Who is going to take the lot?
At a minimum, you need to nominate a Residuary Beneficiary, the person or persons who will receive or shares what is left after any gifts have been paid.
You can give out “gifts” sure. Chose who is going to own your car, or under what conditions your daughter will get your doll collection but make sure you have nominated at least one residual beneficiary who will receive the rest.
It is common practice to safeguard yourself by nominating the residual beneficiary is tiers, for example, husband, children, grandchildren, etc.
“I give the whole of my estate of whatever nature and wherever situated to my trustee Upon Trust to pay my just debts, funeral and testamentary expenses and to divide and pay the rest of my estate to my spouse John Fredrick Doe for their sole use and benefit absolutely provided that if my said spouse dies before me then I give the whole of my estate or whatever nature and wherever situated to my trustees Upon Trust to pay my just debts, funeral and testamentary expenses and to divide and pay the rest of my estate for my Son William Andrew Doe as survive me and reach the age of twenty one (21) years.
Notwithstanding Anything written above I direct that if my child dies before me leaving a child or children who do survive me then that child or those children shall take, and if more than one then as tenants in common in equal shares, the share in my estate that his her or their parent would have taken had their parent not die before me.”
- Finally, make sure its signed right!
It is important that your Will is Executed correctly. In Australia, you will not only need to date and sign your Will but you will also need to have two witnesses date and sign the document also.
Needless to say that the witness would need to also be adults and it would really be preferred that your witness does not stand to benefits from your Will – making it less possible to challenge.
“Dated this 12th day of August 2019.
Jane Rosie Doe
Signed by Jane Rosie Doe as and for a Last Will and Testament in the presence of both of us being present at the same time and we attested Jane Rosie Doe’s signature in the presence of that person and each other.
Witness 1: (Signature)
Print Name: Nate Matthew Biscoe
Address: 39 Marloo Street, Magill SA 5072
Occupation: IT Manager
Witness 2: (Signature)
Print Name: Kaitlyn Alderson
Address: 77 Devon Steet, Thebarton SA 5031