Our Blog

Here you can find general information regarding some of our areas of practice......every one is different, so it is always best to get advice ensuring that all of your circumstances have been considered...

Why do I need a will ?

  • Your will is your chance to say what you want to have done with your property when you die.
  • It is a document that only comes alive when you die.
  • It is only the last will that operates and there is no limit to how many wills you make.
  • A will can always be revoked (cancelled) or changed at any time as long as you have capacity.
  • Your will can also contain your wishes for your funeral and disposal of your body.

What happens if I do not make a will - does it all go to the government ?

  • When you die without a will, the legal term is "to die intestate." The estate only goes to the Government if you have no relatives of the required categories. In the next item, I have set out the list of relatives in order. If there are no relatives in one group then it drops to the next group and so on. If there are relatives in a higher group then those on the lower group get nothing. The word spouse means either legal spouse or de facto spouse (see next).
  • if you don't have a will the persons entitled have to be established by documentary evidence such as birth, death and marriage certificates. These can sometimes be difficult to obtain if the events took place overseas or the details are unknown.
  • in your will you name the Executor. If you have no will the person who deals with your assets may not be your choice. There may be a dispute amongst beneficiaries as to who should administer the estate.
  • if any beneficiaries are under 18, the court will require the administrator obtain person guarantees (sureties) from two other persons. Those persons then become liable if the funds ‘disappear’. There may not be many people who are prepared to give such a guarantee.

When you don't have a will, who gets it?

  • This order was changed substantially by a law that took effect in relation to anyone who died after 1st March 2010. One of the substantial changes is that the law now recognises the possibility of leaving multiple spouses (ie. One legal and one or more de-facto spouse).
  • If deceased left a spouse and either no children or only children of that spouse and the deceased, the whole estate goes to the spouse;
  • If there is more than one spouse but no children (say a legal spouse and also one or more de-facto spouse(s)) then they share the estate equally;
  • If there is a spouse and children of another relationship, the spouse (or spouses) share the first $350,000 of the estate and half the balance. The children get the rest.
  • If no surviving spouse but children then such children get the whole estate equally. If any children have died before the deceased but have left children of their own ( grandchildren) then the share passes down the line ie. to their children and if any of them have died, to their children etc.
  • If no surviving children, grandchildren or spouse, then it passes to parents.
  • If no parents then to brothers and sisters. Like children, if any of them have passed away before the deceased, their children take their share (nieces and nephews).
  • If no brothers and sisters, then to grandparents.
  • If no grandparents then to uncles and aunts and like brothers and sisters, their children (cousins) get the parents share if the parent died before the deceased.
  • If no uncles and aunts (or children of any deceased uncle or aunt) then it goes to the state government.

Can I make my own will without a solicitor?

  • Yes. Your will is valid whether made with or without the assistance of a solicitor or Trustee, as long as it meets the technical requirements. (see below).
  • The usual problem with homemade wills is that they are typically made as if you are about to die but when you do die (hopefully years later) everything has changed:

    A home made will might say "I leave my house at Hurstville and my Commonwealth Bank account to my wife Mabel, any other money to my sister and my car to my son". This might be fine at the time but what if you have sold the house at Hurstville (perhaps it was sold by your Power of Attorney because you are in a nursing home), the Commonwealth Bank is now called the Murdoch Bank and there is no car ? - the effect of the will, will be completely different. The money from the house will go to your sister and your wife and son will get nothing.

  • An experienced solicitor would be less specific with assets and have thought of the possibility that the house might be sold and turned into cash and that the bank details may change.

Technical requirements of a will

  • must be in writing
  • signed by person making will (called the testator) with the apparent intention of approving the will (usually at the foot of each page)
  • if testator is weak, his hand may be assisted to sign
  • signing by another person in the name of the testator is permitted as long as testator present and directs that it be signed. This allows a person who is physically disabled to make a will. This other person may also then be a witness to the will.
  • if testator unable to read, may be read over to him in presence of witnesses.
  • testator's signature must be witnessed by (at least) 2 persons who then sign themselves - all in the presence of each other.
  • all should use the same pen as testator to avoid suggestions that they signed at different times.
  • witnesses should print their name and address under signature so they can be found if necessary when the testator dies. They would normally only be needed if there is some doubt that the will was signed properly.
  • witnesses can be any person old enough to give evidence in a court - not necessary to have JP or similar).
  • witnesses cannot receive a benefit under the will nor can their spouse (if witness or spouse named in will, the will is still valid but they or their spouse can't get the benefit).

How old must you be to make a will?

  • You must be 18 to make a will.
  • you can also make a will if you are married below that age. In NSW you have to be 18 to marry unless you have a court's permission.
  • a will made in contemplation of marriage would become valid when you married, even if you were under 18 when you made it.
  • the Supreme Court can give permission to a minor to make a will.

What is an Executor and what do they have to do?

  • When someone dies, the Executor is the person who has responsibility to find out what their assets and liabilities are, pay all the debts and then distribute the balance in accordance with the will or the laws ofintestacy.


Executors other duties include:

  • arranging the funeral
  • lodging taxation returns and making sure all tax is paid (the Executor is personally responsible for any unpaid tax).
  • take control of any business or farm and ensure that assets are not lost or stolen or perish.
  • if necessary, sell assets to raise funds to either pay debts, taxes or distribute to beneficiaries.
  • distributing the assets to beneficiaries (or the proceeds of sale of the assets).
  • keep financial accounts of what has been done.

Who can be the Executor ?

  • Any adult person can be the Executor (over 18 years).
  • There is no limit on number but more than 2 might become unworkable. Common to appoint one with an alternate if the first can't or won't take on the task.
  • must be a named or definite person
  • The Supreme Court normally require the Executor resides within NSW or be able to give an address for service of documents in NSW.
  • Usually you would want someone you can trust and who has some experience in dealing with assets. The duties may involve selling assets and making decisions as to the price and method of sale.
  • A solicitor can be the executor either alone or with other executors. It is sometimes a good idea to appoint your solicitor with the other executors as a 'referee' in case of disputes.
  • The NSW Trust & Guardian (formerly Public Trustee) or a private trustee company can be executor.
  • a beneficiary can be the executor and it is common to appoint the person receiving the largest interest as executor.
  • it is not a good idea to appoint a person who may have a conflict with the other beneficiaries.
  • a person who is to receive a life interest should not be appointed as executor as the estate will continue until after they pass away.
  • a person who may wish to purchase an asset from the estate may not be a good choice as he can't buy from himself without a specific clause in the will or the consent of all the other beneficiaries (who would all have to be adults) or court approval.

Who can be a witness to the will ?

  • Any person who is old enough to give evidence in court; .
  • can't be a beneficiary to the will or the spouse of a beneficiary (de facto spouse may be included in that category). If they do witness the will they can't get their share although the rest of the will, will not be affected.
  • The task of the witness is to see the person making the will (Testator) sign the will and to then sign themselves. They don't have to know what is in the will. By signing they are effectively saying they were present and the Testator appeared to be signing of his own free will and appeared to understand that he was signing a will. The Testator can sign before the witness is present and then acknowledge his/her signature when the witness is present. The witness is entitled to ask questions of the Testator to be satisfied he understands.

What is Probate ?

  • A “Grant of Probate” comes from the Supreme Court and is the official acknowledgement that on the available evidence:
    • the deceased is in fact deceased
    • a will is the last will of the deceased
    • the executor is authorised to collect assets from persons holding them on behalf of the deceased.
  • Probate is granted by the Supreme Court (although you don't have to go to court unless there is a dispute about the will)
  • People paying assets of the deceased to the Executor named in the grant of probate are protected from future claims by other persons even if the probate is overturned by
  • Probate can be revoked if the will is proven to be not the last or other defects found in the process (ie. the person is not dead).
  • in that case the Executor may have to pay the money back to the estate (even if they have paid it out to other beneficiaries - the Executor would then have a right to take action to recover from such beneficiaries).

Are there any death duties ?

  • Death duties were abolished in 1981 for any person dying after that date.
  • Capital Gains Tax is considered by some to be a form of death duties.  I have given a short resume of this below.

Capital Gains Tax

  • This is a tax on the increase in value of assets that are not exempt.
  • The way it works is that half the increase in value from when an asset is bought or received to when the assets is sold or transferred is added to the sellers other income in the financial year of the sale/transfer.
  • It is payable whether you receive funds for the transfer or not - so if you gift a liable asset without receiving anything, you still have to pay the tax.
  • Principal place of residence is exempt from capital gains tax.
  • Only applies to assets on which the ownership changed after 19 September 1985.
  • Death doesn't create a liability to pay the tax but is a change of ownership so that assets originally bought before 1985 now become liable for tax on any increases (from the date of death).
  • if the asset was bought by the deceased after 1985, you inherit his/her liability (if any) although you don't have to pay it until you sell or transfer the property.
  • if the asset was the principal place of residence of the deceased, you have up to 2 years from the date of death to sell without having to account for any increase from the date of death to the date of sale. The sale has to be completed, not just contracts exchanged, within that time. You can pocket any increase in value in that time.
  • if you sell after the 2 years, any increase in value from date of death to date of sale is liable for capital gains tax in the hands of the beneficiaries.
  • you are allowed to deduct the costs of getting the asset into your name and the sale costs.

Does GST affect an estate?

  • It depends on what assets are in the estate. If the deceased controlled a business which has therefore passed to the estate, then the estate needs to register for GST and put in returns etc. Legal fees of administering the estate will be liable for GST. If real estate is to be sold, the agent commission will be liable for GST. The matter will need to be looked at by your lawyer at the time.

What happens to my debts when I die?

  • They are paid by selling your assets. This is the job of your executor.
  • The executor has to determine what are your assets and what are your debts. He/she must sell your assets, pay your debts and distribute the balance according to your will.
  • your home may have to be sold to pay your debts unless there are other assets available.
  • As part of an application for probate, your executor is required by law to advertise that he is going to apply for probate or your estate and invite people to make claims in your estate. The solicitor would normally arrange this advertising. If you look in the legal pages of the Sydney Morning Herald you will see such ads.
  • if your debts exceed your assets, they can't be paid. Your next of kin are not responsible for your debts (unless they have guaranteed them somehow).
  • your executor is personally liable for any income tax you owe.

I have heard of Testamentary Trusts. Does this have anything to do with a will? Can they save tax ?

  • A Testamentary Trust is any trust created by a will.
  • The term is also used to refer to a trust created with money that came from an estate.
  • It is common in a will to make gifts to children. They might be your children or grandchildren. If these gifts are invested and earn interest, this interest will be income in the child's name. Normally a child (under 18) is only allowed to receive $416 per annum unearned income before paying tax at the maximum rate. This rule was introduced a few years ago to stop high income earners splitting their income through family trusts into their children's names. However, there is an exemption to this rule. If the trust income comes from assets left by an estate, then the normal tax rates and exemptions apply.
  • this means that the first $6,000 is tax free and the progressive rates of tax apply to the balance. The savings can be substantial.
  • you must have an estate of sufficient size to justify setting aside funds for infant beneficiaries and still provide for adult beneficiaries.
  • the exemption can also apply to funds you have placed into a trust for children when the funds have been left to you from an estate. There are more restrictions on this type of trust and the funds must be put into the trust within 3 years of the death. Also limits on the amount of benefit apply.

I have married since I made a will. Does this make any difference ?

  • the general rule is that marriage cancels a will so you now have no will - if you died without making a new will, the rules of intestacy would apply to you.
  • The exception to the rule is if the will is made 'in contemplation of marriage'. It is best if these words are stated on the will but the terms of the will or surrounding circumstances may show that marriage was being considered in making the will.
  • Divorce does not invalidate a will but such ex-spouse is dealt with as if they had died before you. If you want to provide for an ex-spouse the will would have to be very specific. I suggest words like 'This clause is intended to apply even though I have divorced ...'

How often should I update my will?

  • Only marriage will cancel a will but circumstances change and this means your will might need to change too.  If you loose a spouse or child then you should review the will.

How can I cancel a will that does not reflect my current wishes ?

  • Make a new will. A standard clause in a will says 'I revoke all previous wills'.
  • Destroy the will or write cancelled on it. You need to have the original for this. The destruction must clearly be with the intention of revoking the will, not just accidental.
  • you can direct someone else to destroy the will but it must be done in your presence. It is not sufficient to ring your solicitor and tell him to destroy it.
  • by some writing (ie. a letter) that is signed in the same manner as a will (with 2 witnesses etc).
  • You can't authorise someone else to revoke a will after your death.

My uncle left me a house in his will but the house was sold before he died and the money put into a bank account. Can I have the money ?

  • Depends who sold it. If your uncle sold it himself, you are out of luck. If it was sold by his ‘Power of Attorney’ or the Protective Commissioner then you are entitled to the proceeds of sale, if you can prove where they went.

My aunt left a handwritten note saying that she wanted everything to go to me when she died but it is not signed or witnessed. Does it have any legal effect?

  • The Supreme Court now has power (since 1989) to give effect to any document that appears to have the intention to be a will. Evidence can be given of statements of the deceased about their intentions.
  • The case of the famous painter Brett Whiteley is an example of this where the Supreme Court accepted evidence by a witness to a handwritten will of its contents though it could not be found.
LSNSW Scheme

Liability limited by a scheme approved under Professional Standards Legislation