A will is not only for retirees or people with substantial wealth. If you own a home, have superannuation, run a business, care for children or simply want to spare your family difficult decisions, it is time to consider how to prepare a will. In NSW, a properly prepared will gives clear legal direction about what happens to your estate and who should manage it after your death.
Without one, the law decides who receives your assets under intestacy rules. That outcome may not reflect your relationships, your priorities or the practical needs of the people you leave behind. It can also create delays, extra expense and avoidable disagreement at an already difficult time.
Start by identifying what you own
Before writing instructions, create a clear picture of your assets and liabilities. This includes real property, bank accounts, shares, vehicles, valuables, business interests, money owed to you and personal possessions. Also record mortgages, loans, guarantees and other debts.
For many NSW families, the home is the largest asset. Consider how it is owned. Property held as joint tenants generally passes automatically to the surviving joint owner, outside the will. Property held as tenants in common does not pass automatically, so your share can be dealt with under your will. This distinction matters particularly for blended families, investors and business partners.
Not everything you control will necessarily form part of your estate. Superannuation and life insurance can be treated differently, depending on the fund rules and any binding death benefit nomination. Company assets belong to the company, not personally to its director or shareholder, although your shares may form part of your estate. A solicitor can help ensure your will, superannuation arrangements and business succession plans work together rather than create conflicting outcomes.
Decide who should receive your estate
Your beneficiaries are the people or organisations you want to receive your estate. You can leave specific gifts, such as a particular item, cash amount or property, then divide the balance of the estate among other beneficiaries.
Be precise. Saying that jewellery should go to “my children” can cause disputes if there are stepchildren, estranged children or valuable items that more than one person expects to receive. Naming people clearly and describing gifts accurately reduces uncertainty.
You should also name substitute beneficiaries. If a beneficiary dies before you, refuses a gift or cannot inherit for another reason, your will needs to say where that share should go. This is especially useful where gifts are intended for young children or where family circumstances are changing.
Leaving assets to children under 18 requires additional thought. They cannot simply take control of an inheritance themselves. Your will can establish a testamentary trust, nominate trustees and set out when and how funds may be used for education, health, housing and general support. The right approach depends on the size of the estate and the needs of the child.
Choose an executor who can manage the practical work
An executor is responsible for administering your estate. Their role may involve arranging the funeral, locating assets, applying for probate where required, paying debts and tax liabilities, dealing with property, communicating with beneficiaries and distributing the estate.
Choose someone organised, trustworthy and able to handle paperwork and sensitive family discussions. A spouse, adult child, sibling or trusted friend may be appropriate. It is also sensible to appoint an alternate executor in case your first choice cannot act.
Being an executor can take significant time, particularly where there is a property sale, business interest, family provision claim or disagreement among beneficiaries. Some people appoint a professional executor or authorise their executor to obtain legal help. Discuss the appointment with the person first. A surprise executor appointment can place an unwanted burden on someone who is grieving or unable to take on the role.
Appoint guardians for children
If you have children under 18, your will should nominate the person or people you would prefer to care for them if both parents have died. This is one of the most personal decisions in estate planning.
Consider the proposed guardian’s relationship with your children, age, health, values, location, existing family commitments and willingness to take on the responsibility. Speak with them before recording the appointment. You may also wish to name an alternative guardian.
A guardianship clause is an important expression of your wishes, but the court’s overriding consideration remains the child’s best interests. Clear planning can nevertheless provide valuable guidance and reduce uncertainty for relatives at a stressful time.
Meet the legal requirements for a valid will in NSW
A will should be prepared carefully and signed correctly. Under the Succession Act 2006 (NSW), a standard will must be in writing and signed by the will-maker, or by another person in the will-maker’s presence and at their direction. The will-maker must intend the signature to give effect to the will.
The signature must be made or acknowledged in the presence of at least two witnesses who are present at the same time. The witnesses must then sign the will in the will-maker’s presence. While there are circumstances in which a court may accept an informal document as a will, relying on that possibility can lead to costly litigation and delay.
Do not use a beneficiary, or the beneficiary’s spouse, as a witness if it can be avoided. Gifts to witnesses can be affected by the witnessing rules, creating a problem that may have been easy to prevent. Independent adult witnesses are generally the safer choice.
The person making the will must also have testamentary capacity. In practical terms, they must understand the nature and effect of making a will, have a general understanding of their assets and recognise the people who may reasonably expect consideration. Capacity can become contentious where there is serious illness, cognitive decline, medication, family pressure or a major change to an existing estate plan. Legal advice and, where appropriate, medical evidence can help protect the will from later challenge.
Avoid common mistakes when you prepare a will
Generic online forms may suit a straightforward situation, but they can miss issues that are common in real families and businesses. A small drafting error can have expensive consequences after death, when the person best placed to explain their intentions is no longer available.
Common problems include failing to deal with the residue of the estate, using vague descriptions of beneficiaries, overlooking superannuation, forgetting an alternate executor, and making handwritten changes after signing. Do not cross out clauses, attach notes or alter a signed will without legal advice. An alteration may be ineffective or may raise questions about the validity of the whole document.
Another frequent issue is assuming a will remains suitable forever. Marriage generally revokes an earlier will in NSW, subject to limited exceptions. Divorce can also affect gifts and appointments involving a former spouse. Separation alone does not automatically change a will, which can leave an estranged spouse in a role or receiving a benefit you no longer intend.
Review your will when life changes
A will should be reviewed after major life events, including marriage, separation, divorce, the birth or adoption of a child, buying or selling property, receiving an inheritance, starting or selling a business, or the death of an executor or beneficiary.
Reviewing does not always mean starting again. A codicil can sometimes make a limited amendment, but a new will is often clearer where multiple changes are needed. Your solicitor can advise which option best reflects your circumstances and avoids uncertainty.
Keep the signed original in a safe place and make sure your executor knows where it is stored. Do not keep it somewhere inaccessible without telling anyone, such as a locked safe that no one can open. Your executor does not need to know every detail of your estate, but they should be able to locate the original document when the time comes.
Get advice where your circumstances are not simple
Professional advice is particularly valuable if you own property with someone else, have a blended family, expect a beneficiary may challenge the will, hold assets in a trust or company, have overseas assets, or wish to exclude a person who may be eligible to make a family provision claim. In NSW, certain family members and dependants may seek further provision from an estate in some circumstances, even where a will exists.
A lawyer can ask the questions a template cannot: whether your proposed distribution is workable, whether your ownership structure changes the outcome, and whether the document has been executed in a way that supports your intentions. GKE Lawyers can provide clear, practical advice tailored to your family, assets and NSW legal obligations.
Preparing a will is a considered act of care. Taking the time to make clear decisions now can give the people closest to you direction, certainty and one less burden to carry later.
