Wills & Estate Planning NSW | 10 Common Questions

Wills and Estate Planning in NSW: 10 Common Questions

A properly prepared Will can help ensure that your estate is administered according to your wishes and can reduce uncertainty for your family after your death.

1. Should I Make a Will?

Most adults should consider having a current Will. A Will allows you to nominate beneficiaries, appoint an executor and give directions about how your estate is to be distributed.

A Will can also include provisions for trusts, guardianship wishes for children and particular gifts.

2. Can I Leave a Child or Other Family Member Out of My Will?

A person generally has freedom to decide how their estate is distributed, but eligible persons may in some circumstances make a Family Provision claim if they believe adequate provision has not been made for them.

Where you are considering excluding or making limited provision for a close family member, legal advice is particularly important.

Learn more about contesting a Will and Family Provision claims.

3. Do I Need Mental Capacity to Make a Will?

A person making a Will must have the required testamentary capacity.

Where capacity may later be questioned because of age, illness or other circumstances, appropriate evidence and careful preparation can become particularly important.

4. Who Can Witness a Will?

A Will in NSW is generally signed in the presence of two witnesses who also sign the document.

It is preferable to use independent adult witnesses who are not beneficiaries under the Will. Gifts to a beneficiary who witnesses a Will can be affected by the Succession Act 2006 (NSW), although exceptions can apply in particular circumstances.

5. What Happens to My Debts?

An executor is responsible for identifying the assets and liabilities of the estate, paying valid debts and administration expenses, and then distributing the remaining estate in accordance with the Will.

6. What Happens If I Die Without a Will?

Dying without a valid Will is known as dying intestate.

In that situation, NSW intestacy rules determine who is entitled to the estate. An eligible person will generally need to apply to the Supreme Court of NSW for Letters of Administration before administering the estate.

Learn more about intestacy law in NSW.

7. Who Arranges the Funeral?

The executor commonly takes responsibility for arranging the funeral and dealing with funeral expenses from the estate.

You can record funeral or memorial wishes in your estate planning documents, although practical arrangements may need to be made before the Will is formally reviewed.

8. Do I Need a Lawyer to Make a Will?

There are different ways to prepare a Will, but legal advice can help ensure that the document is valid, properly executed and suited to your particular family, assets and wishes.

Professional advice is especially important where there are blended families, businesses, trusts, significant assets, vulnerable beneficiaries or a risk of future estate disputes.

9. Can I Nominate a Guardian for My Children?

A Will can record your wishes about who should care for your minor children if you die.

Guardianship issues can depend on the circumstances existing at the time, so the nomination should be considered carefully as part of your broader estate planning.

10. Can I Leave a Specific Item to Someone?

Yes. A Will can make specific gifts of items such as jewellery, artwork, vehicles, shares or other property.

The gift should be described clearly enough for the executor to identify it, and the Will should also address what is to happen if the item is no longer owned when the Will-maker dies.

Reviewing Your Estate Plan

Estate planning should be reviewed when significant circumstances change, including marriage, separation, the birth of children, changes in assets, business arrangements or the death of an executor or beneficiary.

Learn more about Wills, Powers of Attorney and Enduring Guardianship.

Learn more about Probate and Deceased Estates.

Speak to Russell Kelly & Associates

Russell Kelly & Associates can assist with Wills, estate planning, Probate and deceased estate matters in New South Wales.

Contact us to arrange an appointment.

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This information is general in nature and should not be relied upon as legal advice. Estate planning outcomes depend on the circumstances of the individual and the law applying at the relevant time.