Not sure how to prepare a will so that your wishes are carried out after your passing? It all comes down to knowing how to make a will with a lawyer, which is why we’ve written this guide so you know exactly what to expect when you see one of the will preparation and estate planning team at Johnston Withers Lawyers.
Depending on your circumstances, you should allow half an hour to an hour for your first will preparation appointment with one of our lawyers.
We’re commonly asked by clients, “What do you need to prepare a will?” and in most circumstances, you don’t need to do much before the appointment, besides have a think over the topics below.
You don’t need to prepare written answers before creating a will, or come to a final decision about what to record in your will – our lawyers assist you with that!
In South Australia, the legal wills process will begin with a discussion about the following topics:
First, you’ll be asked about your family and the people in your close circle. Your will preparation lawyer will ask you about the names and the relationship you have with your spouse or partner, children, parents, siblings and grandchildren. You’ll also be asked about any former spouse or domestic partner(s).
At the end of this discussion, our will preparation specialists should have a clear idea of your family tree, and we will be able to advise you about people who might be able to bring a claim against your estate under the Inheritance (Family Provision) Act 1972 (SA).
Want more information? Check out our article on Who can contest a will in South Australia (and how to do it).
Part of our will preparation process includes discussing your assets and liabilities (those that you own personally or jointly with others, or in which you may have an interest e.g. a trust) and their value.
We’ll go through your assets with you to explain to you what would happen to these assets ordinarily upon your passing if you didn’t prepare a will.
For example, if you own property as joint tenants with another, ownership will pass automatically to the other owner or owners upon the surviving owner noting your death. Jointly-owned assets don’t form part of your estate (see our article on Joint tenants vs. tenants in common – what’s the difference?).
We’ll also go through what happens to your superannuation and the importance of a binding death nomination when creating wills in South Australia.
It’s helpful if you’ve thought about (and, if possible, made a list) of the following assets and values before your will preparation appointment:
Any real estate
Superannuation entitlements including any self-managed superannuation funds
Trusts (discretionary, unit, etc.)
Any other assets
Also, think about the following liabilities (and values):
Any other debts
After discussing your family and financial situation, we’ll have a much better understanding of your personal circumstances. This allows our will preparation team to provide you with advice and guidance about your will and tailor it to reflect your wishes.
Your executor stands in your shoes when you pass away. Their job is to call in the assets of the estate, pay off the liabilities and distribute your estate in accordance with your wishes. We recommend that your executor be someone you trust, who has a reasonable understanding of your affairs.
We usually recommend that you appoint one or two people as your executors, with one or two people appointed as a backup, in case your first choice dies before you or is otherwise unwilling or unable to act.
The executor’s role will be to call in and liquidate the assets of the estate. During will preparation, you should consider whether there are any items such as family heirlooms or sentimental items that you’d like gifted to a specific person rather than be sold, and converted to cash.
This includes any consideration of charitable or religious requests (gifts).
This is usually dealt with by way of residue (ie. what is left over once your assets are called in and your debts paid and specific gifts and legacies distributed), rather than setting out who gets what monetary sum. The reason for this is that your net worth will change over time and you don’t want to update your will every time this occurs!
Once you’ve worked out who you want your beneficiaries to be, consider what you’d like to happen if they have died before you. Would you like their interest to go to their child/children, or is there an alternative beneficiary that you’d prefer?
Depending on your circumstances, you may require a trust (such as testamentary, special disability or protective trust), a right to reside in property, a contract for mutual wills (see our article on contracts for Wills) or the gift of power of appointment in a discretionary trust.
If you have infant children, you may want to express your wishes on who should care for your children in their infancy while preparing a will.
Finally, if you have a strong preference on whether you’d like to be buried or cremated it should be recorded during will preparation.
After our meeting, we’ll prepare your draft will. This will be sent to you so you can read it over at home.
Once you’ve read over the document and made any necessary changes, we’ll arrange a second will preparation appointment where we go over the document with you. When you’re happy with the content and understand your will, it can be signed.
You’ll then have a legally binding will, and peace of mind about what will happen after your passing.
Johnston Withers Lawyers has been helping South Australian families, individuals, businesses and communities for over 75 years. We’re here to help you make the process of preparing a will as painless as possible.
If you’d like advice or direction from a lawyer about creating a will in South Australia, please contact Emma Godson on (08) 8231 1110, or send us a message.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
Practice leader: Wills and estates
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