Frequently Asked Questions

What is a Will?

A will is a legal document that clearly sets out how you wish your assets to be distributed when you die. Also, if you have minor children, it nominates a guardian (or guardians) who will care for them after your death.

How long will it take me to make my will?

It could take you as little as 5 minutes if you have a partner and wish to leave 100% of your estate to them. If you have more beneficiaries (children, other family members, friends, and so on) and if you have a number of gifts to list, and lots of information to include it will take longer.

In general, however, most My Will Online customers take around 30-40 minutes to complete entering their information and to download their completed will document package.

Do I need a Will?

Many people wonder whether they need a will. So, maybe the best way to determine the answer is to let you know what can happen if you don't have a will when you die.

If you die without a will, your estate (all that you own) is divided up according to standard rules (called “intestacy rules”). It would be far better for you to decide who gets what from your estate rather than have it divided according to a government imposed legal formula.

If your only living relatives are no closer than cousins, your entire estate will pass to the government.

Making a Will is the only way you can ensure your assets will be distributed according to your wishes when you die. Studies have shown that at least 45% of Australians do not have a valid Will.

In addition to not having your estate distributed according to your wishes, your family will incur additional cost and hardship if you die without a will.

What is required for my will to be legally valid?

Your will is legally valid if the following criteria are complied with:

  1. You must be 18 years or older unless married.
  2. Your will must be in writing. That is, it must be either handwritten, typed or printed.
  3. It must be signed by the person making the will in the presence of at least 2 witnesses who must also sign the will. The witnesses should not be beneficiaries of the will.
  4. The will maker must have what is known as “testamentary capacity”. This means that they must:
    • understand the nature of the act of making a will (in other words, understand what the will is for)
    • understand the extent of their estate (know what assets they have)
    • understand who has a reasonable claim upon their estate (that is, which family members and others it is appropriate to leave something to in their will)
    • not suffer from what the court cases call a “disease of the mind”. In other words, they are suffering from something that prevents them from making a rational decision. For example: dementia, mental illness, or substance induced psychosis.
  5. There must be no undue influence, coercion or duress on the person. Many elderly people are pressured by others including relatives, carers and neighbours. Undue influence is pressure that falls short of duress and usually exists where there is some sort of relationship between the parties. Duress or coercion is based on a threat to cause harm and is generally thought of as considerably more serious than undue influence.

What events will make my will invalid?

There are events that happen in life that will make a previously valid will invalid. They include:

  • getting married
  • getting divorced

Should either of these events happen. You need to make another will.

When should I update my will?

You should revisit your will every 5-7 years as a guideline and update your will if:

  • your financial circumstances change
  • your family circumstances change, for example, if you marry, start a new relationship, divorce, separate, or have children or grandchildren
  • a beneficiary under your current will dies
  • an executor or trustee appointed under your current will dies or becomes unsuitable to act due to age or ill-health
  • you sell or give away assets that are specifically mentioned in your will
  • you buy or inherit significant assets
  • you begin to hold assets that your will cannot deal with, such as in superannuation or a trust

What is the executor of a will?

An executor (or executors) is the person or organisation the will maker has selected to administer the estate, within the terms of the will, after the death of the will maker.

The executor should be someone who understands the financial, legal and taxation obligations of the will and the estate. Should any disputes arise over the will, an independent executor is often a wise choice.

How often can I change my will?

If your circumstances change considerably, then you should re-write your will.

If you get married or divorced, then your current will is invalidated and you must re-write your will.

Your new will supersedes anything you have written in an earlier will.

How do I provide for my pets in my Will?

Under the law, a pet is considered to be your property, and as such they cannot be a beneficiary of any gifts or a share of your estate. However, you can make provision for them in your will by allocating a carer, which may be an individual or an organisation such as an animal charity.

You would typically provide a legacy (cash gift) or share of your estate to the carer so they can provide ongoing care to the pet for the rest of its life. Animal charities that provide pet legacy programmes would typically use the gift to assist with finding a new home for your pet.

It's advisable to speak with an individual who you'd like to care for your pet before hand so that you can be comfortable that your pet will be cared for as you wish.

My Will Online makes it easy to care for your pet by including a section in our Will specifically to provide for your pet after you're gone.

What happens if I die without a will and I am in a de-facto relationship?

Under the law, your de-facto partner is considered your legal spouse, and he or she may be entitled to a share of your estate. But the onus is on them to prove that you were in fact in a de-facto relationship if there are any disputes.

To be certain that your de-facto partner receives their share of your estate, you need to create a will that details how your estate should be divided and include them specifically by name.

What happens if I die without a will and I am in a de-facto same sex relationship?

Under the law, your de-facto same sex partner is considered your legal spouse, and he or she may be entitled to a share of your estate. But the onus is on them to prove that you were in fact in a de-facto relationship if there are any disputes.

To be certain that your de-facto same sex partner receives their share of your estate, you need to create a will that details how your estate should be divided and include them specifically by name.

Can my will be contested?

Yes. People who have been left out of a will, or feel that they should have received a larger share of the estate may bring a claim against the estate, if they can establish that they are an eligible person.

People who are eligible persons include spouses, de facto spouses, former spouses, children, stepchildren, grandchildren and other people who were members of the will makers household and dependant or partially dependant on the will maker (e.g. live-in housekeepers and carers).

Is my superannuation included in my estate?

In most cases, your superannuation is not included in the estate. But this differs by state. The superannuation company who holds your superannuation will decide how your benefit is paid out.

You should consider making a “binding nomination” with your super fund. This will allow you to nominate beneficiaries of your choice that the trustee of the super fund must honour. You should contact your super fund trustee to arrange this.

Where should I keep my will?

It is important that your will can be found after your death. Store the original of your will in a safe place, and tell those close to you where it is stored. It is also a good idea to let your executors know where your will is stored.

You may make as many copies of your completed and signed original will as you like.

If the will cannot be located after your death, then you are essentially dying intestate (without a will).

If I wish to change my will, do I need to pay again?

Premium Wills purchased at My Will Online can be edited and downloaded again as often as you require for life. There are no further costs associated with changing and downloading again.

Quick Wills, however, cannot be updated and re-downloaded free of charge. You would need to create and purchase a new Quick Will.

What is an Enduring Power of Attorney?

An “enduring power of attorney” is a legal agreement that enables a person to appoint a trusted person (or persons) to make financial and/or property decisions on their behalf.

The benefit of an enduring power of attorney is that unlike an ordinary power of attorney, it will continue to operate even if the donor loses full legal capacity.

An enduring power of attorney ceases to have effect when the person dies. From that point on, the person's will dictates what happens to their estate.

An “enduring power of attorney” is different in each state and a distinct form is used to create one for each state. In some states an enduring power of attorney covers only financial and property matters, and in others, it may also cover health matters.

If you select an Enduring Power of Attorney document along with your will, it will also include guidelines on how to complete the document.

Why should I have an Enduring Power of Attorney?

You may not always be able to make decisions when you need to. You may be too ill to make choices about your financial matters, or you could suffer a disability that prevents you from communicating your wishes to others.

Having an “enduring power of attorney” allows your estate to be managed by someone you trust if you are no longer able to manage it yourself.

When does an Enduring Power of Attorney take effect?

The “enduring power of attorney” will take effect whenever you decide. It could take effect immediately or when some event occurs, such as you becoming incapable of managing your affairs. There are clauses in the enduring power of attorney document that specify when it will become effective.

What is an Executor's Memorandum?

An Executor's Memorandum is a document that accompanies your will which provides your executor with information that will help them administer the wishes of your will. It typically includes: names and contact details of beneficiaries and guardians, asset and liability lists and other information that may be useful such as bank account numbers, life insurance policies, online asset information (such as Facebook login details and passwords) and so on.

My Will Online includes an Executor's Memorandum with all wills.

I have a family trust. Can I make a will with My Will Online?

If your circumstances are complex (such as having a family trust, or a company), we highly recommend that you get your Will drafted by a solicitor.

My Will Online works for the majority of people, but does not attempt to cater for more complex arrangements that some individuals may have.


 

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