What is a Will?

NSW Trustee and Guardian have a selection of packages available for making a Will, so you can pick the best option for you. Learn more about our Will fees.

When customers book an appointment with us, they are invited to a face-to-face appointment where they can talk through their wishes and our staff can provide advice. Throughout the appointment, we ask a series of questions and make observations to confirm a person’s capacity, that is, their ability to understand and appreciate the significance of the decisions they are making. 

If you own assets of financial value overseas (including real estate, shares or bank accounts) we recommend you make a separate Will dealing with those overseas assets, rather than having one Will expressed to deal with all assets.

NSW Trustee and Guardian is able to provide advice regarding your Will so far as it deals with your assets in Australia. However we are not able to give advice as to whether your Will is effective to dispose of your overseas assets. The inheritance laws in other countries may be significantly different to those in Australia.

For example, some countries have laws that result in certain family members being automatically entitled to a specified share in your estate regardless of the terms of your Will.

There may be laws regarding who may contest your Will and taxation laws that may impact your estate and your beneficiaries. There may even be different requirements for the execution of a valid Will.

For these reasons it is recommended that you make a Will dealing with your Australian assets and that you retain a person who is qualified in the laws of the country where your other assets are held to prepare a Will dealing with those assets.

This approach ensures that you obtain professional legal advice in each country, giving proper consideration to such issues as the appointment of executors, the local procedures for estate administration, taxation implications such as inheritance tax and other inheritance laws.

Having separate Wills dealing with assets in the different countries will minimise the chance of administrative difficulties occurring after your death, which can occur when the original Will is held in one country while there are other assets in another country that need to be distributed. If there is a separate Will for each country, this means that authority to administer the estate (in Australia called probate) can more easily be obtained and with less delay.

In 2015 Australia became a signatory to an International Convention in relation to International Wills. Not all countries are signed up to the Convention, but for those countries that have signed up, there is a standard form of Will that will be accepted as a validly executed Will. However, the law in each country still applies in respect of the administration of the estate and so issues may still apply.

We recommend that if you have assets of financial value overseas that will need to be formally administered after your death, you have separate Wills dealing with your assets in each country.

We are experienced with a range of different circumstances and prepare Wills for people with straight-forward and more complex circumstances, but there are a few exceptions. 

We will not be able to prepare a Will for the following circumstances: 

• Wills and / or Powers of Attorney appointing another professional such as a solicitor, accountant, financial planner or other trustee company.

• Where the testator wishes to set up family discretionary trusts in their Will with a focus on tax minimisation and asset protection for beneficiaries.

  • These trusts often enable the trustee to distribute between a wide range of potential beneficiaries. However, we do prepare trusts (including discretionary trusts) for vulnerable and incapable adults. 

• Contracts for mutual Wills (except if you and your spouse have previously made contracts for mutual Wills with NSW Trustee and Guardian and you are both returning to update your Wills).

  • An example of contracts for mutual Wills is where  spouses (often in a second marriage or second relationship) agree to make their Wills in a certain way and agree that upon the death or incapacity of one of them, the other cannot make a new Will which reduces the provision to their spouse or their spouse’s children/grandchildren.  

• Wills for clients who own businesses, except where the client is:

  • a sole trader

  • the sole director/shareholder of a private company through which the business operates

  • the clients are spouses and they are the only directors and shareholders of a private company through which the business operates. 

• Wills dealing with overseas assets, except in limited circumstances, for example, if the overseas assets are of low value and do not include real estate or if the assets are in certain limited overseas countries.

  • If you have overseas assets we are still able to make your Will dealing with your Australian assets.

  • It is advisable that you consult a suitably qualified lawyer or Will maker in the overseas jurisdiction to obtain advice and put a Will in place dealing with your overseas assets. 

Even if you would like your assets to be distributed according to the rules of intestacy when you die, there are a number of differences between dying with a Will and without. The main one being how administration of the estate will be granted after you pass away.

When a person has a valid Will, their executor can start protecting the assets right away after death and obtains a “grant of probate” to distribute assets according to the wishes of the Will.

When a person dies intestate, a relative (usually the person set to inherit the largest share of the estate, such as the spouse) will need to apply to the court for “letters of administration”. Extra steps may be involved as the person will need to prove their eligibility to the court.

If the children are the ones who would be entitled to the estate, then consideration needs to be given to whether conflicts will arise within the family on who applies for the letters of administration.

Other considerations include: whether your children are under age and need to be protected under a trust or assigned guardians, whether your children are married and you would want to protect their inheritance in case of changes in their relationships, bequests for charities, organisations and other people, pets that need to be taken care of, whether you’ve made binding or non-binding superannuation nominations and whether there has been children from previous relationships (this changes the intestacy rules significantly, as ALL biological children will be eligible to share the estate with the surviving spouse).

NSW Trustee and Guardian recommends that everyone over the age of 18 make a Will to properly document their wishes and reduce the pressure on their loved ones at a time they may be grieving. Wills are an important piece of life admin and should be reviewed every 3-5 years, and updated when there is a major change to circumstances.