How to Write a Will in Australia — A Simple Guide for Australians Over 60

More than half of all Australians don’t have a valid will. It’s one of those things everyone knows they should do — and almost everyone puts off. But dying without a will — dying intestate — creates significant stress, expense, and potential conflict for the family you leave behind at exactly the moment when they’re already grieving. Writing your will is one of the greatest gifts you can give the people you love. Here’s everything you need to know.

Why Having a Will Matters

A will is a legal document that sets out how you want your assets distributed after your death and who you want to manage that process.

Without a valid will the state decides how your assets are distributed — according to a formula set out in legislation that may bear no resemblance to what you actually wanted. This process is called intestacy and it creates problems that are entirely avoidable.

What can go wrong without a will:

Your assets may not go where you want them The intestacy rules distribute assets according to a strict legal formula — typically to spouse first, then children equally. This may not reflect your actual wishes — particularly in blended families, where you have specific wishes about particular assets, or where you want to leave something to a friend, charity, or extended family member.

Your family faces unnecessary expense and delay Administering an estate without a will is significantly more complex, more expensive, and slower than administering one with a valid will. Legal fees mount and the process can take months or even years.

Family conflict can arise Without clear documented wishes family members sometimes disagree about what the deceased would have wanted. These disagreements can permanently damage relationships at an already painful time.

Your chosen guardian for children may not be appointed If you have dependent children a will allows you to nominate a guardian. Without a will the court makes this decision.

Key Terms You Need to Know

Testator The person making the will — you.

Executor The person you appoint to administer your estate after your death — to gather your assets, pay your debts, and distribute what remains according to your will. Choosing the right executor is one of the most important decisions in will making.

Beneficiary A person or organisation who receives something under your will.

Estate Everything you own at the time of your death — property, money, investments, personal possessions, and other assets.

Intestate Dying without a valid will.

Probate The legal process of proving that a will is valid and giving the executor authority to administer the estate.

What Should Your Will Include

Appointment of executor Choose someone you trust completely — who is organised, responsible, and willing to take on the role. Many people appoint their spouse, an adult child, or a close friend. You can also appoint a professional executor such as a solicitor or trustee company.

Consider appointing a substitute executor in case your first choice is unable or unwilling to act when the time comes.

Distribution of your estate Specify who receives what. Be as clear and specific as possible to avoid ambiguity. Include full legal names of beneficiaries.

Consider what happens if a beneficiary dies before you — who does their share go to? This is called a substitution clause and it’s important to include.

Specific gifts If you want particular items to go to particular people — a piece of jewellery to a daughter, a tool collection to a son, a painting to a friend — specify these as specific gifts in your will.

Residuary estate After specific gifts and debts are paid the remainder of your estate — the residuary estate — should be clearly distributed. Most wills leave the residuary estate to a spouse or partner and then to children equally.

Funeral wishes You can include your wishes about funeral arrangements in your will — burial versus cremation, religious or secular service, specific wishes about the service. Note that wills are sometimes not read until after the funeral so also communicate your wishes separately to family members.

Guardianship of children If you have dependent children nominate a guardian and a substitute guardian.

Testamentary trusts For larger or more complex estates a testamentary trust — a trust created by your will that comes into effect on your death — can provide significant tax advantages and asset protection benefits for beneficiaries. Worth discussing with a solicitor.

How to Make a Valid Will in Australia

For a will to be legally valid in Australia it must meet certain requirements:

You must be at least 18 years old With limited exceptions for married minors.

You must have testamentary capacity You must understand what a will is, what assets you have, who your natural beneficiaries are, and what the effect of the will is. This is why making your will while you are healthy and mentally sharp is important — challenging a will on capacity grounds is unfortunately not uncommon.

The will must be in writing Handwritten or typed — both are acceptable.

You must sign the will In the presence of two witnesses.

Two witnesses must sign Both witnesses must be present when you sign and must both sign in your presence. Witnesses should not be beneficiaries under the will or spouses of beneficiaries — this can affect their entitlement.

Your Options for Making a Will

1. Use a solicitor — recommended Having a solicitor draft your will is the most reliable option — particularly for anything other than a very straightforward estate. A solicitor ensures your will is legally valid, properly drafted to reflect your actual wishes, and takes into account tax and estate planning considerations.

Cost varies but typically ranges from $300 to $1,000 for a straightforward will — a small price for the peace of mind and certainty it provides.

2. Use a trustee company Public Trustee offices operate in every Australian state and territory and offer will making services at competitive prices. They can also act as executor which can be valuable if you don’t have an appropriate person to appoint.

3. Online will services Several reputable online will services operate in Australia — including Safewill and Willed — offering streamlined will creation at lower cost than traditional solicitors. Suitable for straightforward estates.

4. Will kits Basic will kits are available from newsagencies and post offices. These are the highest risk option — errors in completing a will kit can result in an invalid will or unintended outcomes. Not recommended for anything other than the simplest estates.

Keeping Your Will Up to Date

Making a will is not a one time event — it should be reviewed and updated regularly as your circumstances change.

Review your will when:

• You marry or enter a de facto relationship — marriage automatically revokes a previous will in most Australian states
• You separate or divorce
• You have children or grandchildren
• A beneficiary or executor dies
• Your assets change significantly — you buy or sell property, receive an inheritance
• Your wishes change
• You move between states — will laws vary slightly between states
• Tax laws change in ways that affect your estate

As a general rule review your will every three to five years even if nothing significant has changed.

Superannuation and Your Will

One of the most common misunderstandings about wills is that superannuation automatically forms part of your estate and is distributed according to your will.

It doesn’t.

Superannuation is held in trust and is not automatically part of your estate. The distribution of your superannuation on death is determined by:

Binding Death Benefit Nomination — BDBN A formal nomination that legally binds your superannuation fund to pay your death benefit to the people you nominate. BDBNs typically need to be renewed every three years.

Non binding nomination A nomination that guides but doesn’t bind your fund trustee — they have discretion to pay differently.

No nomination The fund trustee decides who receives your superannuation — typically your estate or dependants.

Reviewing your superannuation death benefit nomination is as important as making your will — and many Australians have outdated nominations that no longer reflect their wishes.

Digital Assets

An increasingly important consideration in will making is digital assets — online accounts, cryptocurrency, digital photos, social media accounts, and other digital property.

Include a digital assets clause in your will and consider maintaining a secure document listing your digital accounts, usernames, and passwords that your executor can access.

Storing Your Will

Once made your will should be stored safely and its location known to your executor.

Options:

• With your solicitor — most solicitors store wills for their clients
• With the Public Trustee in your state
• In a fireproof safe at home
• With a trusted family member

Make sure at least two people know where your original will is stored. A will that can’t be found at the time of death creates significant problems.

Having the Conversation

The most important will related advice I can give isn’t legal — it’s personal.

Tell your family where your will is. Tell them what’s in it. Tell them why you made the decisions you made.

Surprises in wills create conflict. Clarity creates peace.

The conversation may feel uncomfortable. But the alternative — leaving your family to guess, to argue, to navigate your estate without knowing your wishes — is far worse.

Where to Get Help

Law Society of your state Can provide referrals to solicitors who specialise in wills and estates.

Public Trustee Available in every state and territory — search “Public Trustee” plus your state.

Legal Aid For those who cannot afford legal advice — search “Legal Aid” plus your state.

Seniors Legal Services Queensland Free legal advice for Queenslanders over 60 — seniorsleghub.asn.au — 1300 658 528

The Bottom Line

Writing your will is not morbid — it’s one of the most loving and responsible things you can do for the people you care about. It costs relatively little, takes relatively little time, and provides enormous peace of mind for you and your family.

If you don’t have a valid up to date will — make one this year. Don’t put it off any longer.

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