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A comprehensive guide to Wills in New South Wales

A comprehensive guide to Wills in New South Wales

Published on January 17, 2024 by Josephine Heesh, Adelaide Ryan and Gillian KirwanJosephine Heesh, Adelaide Ryan and Gillian Kirwan

Creating a Will is a crucial step in ensuring your wishes are carried out after you pass away. In New South Wales (NSW), the process of preparing, updating, and storing a Will involves legal considerations that every individual should be aware of. This article provides a comprehensive overview of what a Will is, how to prepare one, how to update it, and how to ensure its safekeeping.

What is a Will?

A Will, also known as a Last Will and Testament, is a legally binding document that outlines how you want your assets, property, and possessions to be distributed after your death. It also enables you to nominate the guardianship of minor children, appoint an executor to manage your estate, and detail any funeral or burial preferences.

Preparing a Will in NSW checklist

i. Eligibility – to create a Will in NSW, you must be at least 18 years old and of sound mind. This means you understand the implications of your decisions and are not under undue influence (under any outside pressure).

ii. Content – Your Will should clearly state your wishes regarding the distribution of your assets and any other specific instructions. Your assets can include your real estate or any personal property, and intangible personal property such as stocks or bonds, intellectual property including patents or royalties, and your digital assets. It is important to include details about your beneficiaries, appoint an executor, and an alternate executor.

iii. Executor – An executor is responsible for carrying out the provisions of your Will. Choose someone you trust and who is willing to take on this responsibility.

iv. Witnesses – In NSW, your Will must be signed in the presence of at least two witnesses who are not beneficiaries. Witnesses must also sign the Will.

v. Obtain legal advice – while you can prepare a Will on your own, seeking legal advice is always recommended to ensure your Will is valid, comprehensive, and aligns with relevant laws.

Updating a Will in NSW

Life circumstances change, so it’s essential to keep your Will up to date to reflect your current wishes. Here’s how you can update your Will in NSW:

i. Codicil – A codicil is a legal document used to make minor amendments to your existing Will. However, if changes are significant, it’s often better to create a new Will to avoid confusion.

ii. Creating a new Will – If you decide to make substantial changes, it’s advisable to create a new Will. It is best to see an experienced estate planning lawyer to ensure the new Will explicitly revokes any previous versions to avoid any potential issues in the future.

iii. Review your Will regularly – You should review your Will periodically, especially after major life events like marriage, divorce, the birth of a child, or significant changes in your financial situation.

Storing a Will in NSW

After preparing or updating your Will, it’s crucial to keep it in a secure place. Some examples include:

i. At home – you can store your Will in a fireproof and waterproof container at home. You should inform your executor and a trusted family member of its location.

ii. With professionals – You can choose to store your Will with your solicitor, a law firm, a trustee company, or the NSW Trustee and Guardian. You should ensure your executor knows where it’s stored.

Creating, updating, and storing a Will in NSW is a responsible step toward securing the future for yourself and your loved ones. By understanding the process, seeking legal advice when necessary, and keeping your Will up to date, you can ensure that your wishes are respected, and your estate is handled according to your preferences.

You can contact us at Carroll & O’Dea Lawyers on 1800 059 278 or via our Contact Page if you need advice and one of our estate planning lawyers will assist you.

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