Johnston Withers

Your guide to will and estate planning.

Published on Friday 18 August, 2023 by Rosemary Caruso

Your guide to will and estate planning

Here’s everything you need to know about will and estate planning, from what a will is to grounds for contesting a will.

Dying without a will johnston withers lawyers

What is a will?

A will is a legal document that sets out who will inherit your assets when you die. A will is what also appoints executors, and guardians for any minor children – a critical part of will and estate planning. Plus, a will can express your wishes about how you’d like your body to be buried or cremated.

Find out the best place to store your will here.

What happens if you die without a will in Australia?

If you don’t have a will, you’re deemed to have died intestate. Dying without a will means your assets will be distributed to the persons (and in the proportions specified) in the Administration & Probate Act SA 1919.

Not having a will can create a number of complex and often expensive scenarios, particularly when you may still be legally married (but not divorced) and be in a new domestic partnership, or where there are children involved.

How to make a will in South Australia

There are some things you may want to consider before making a will in SA, but by getting a lawyer who is skilled in the area of wills to prepare your will, you’ll have peace of mind that your will is drafted and signed properly.

Will and estate planning protects your loved ones against the unnecessary stress and expense of having to rectify any errors in the will, or even having to make an application to have an informal will admitted to Probate. A lawyer will also be able to give you proper advice on reducing any potential challenges to your will.

Time to make a will? Our wills and succession lawyers in SA can help.

Are online wills legal in Australia?

DIY wills and ‘will kits’ seem like a free, cheap and easy form of will and estate planning, but they must be treated with caution. If homemade wills aren’t completed or signed properly, their validity can be questioned, which means significant delays and costs in trying to rectify errors with the Probate Office. In some cases, homemade wills result in very expensive litigation if people don’t agree that the will should be upheld as a result of the errors.

What assets can you leave in your will?

When planning your will and estate, you can leave any asset that is your sole property.

You can’t leave jointly owned assets such as cars, bank accounts, home contents and real estate (other than real estate where you’re a tenant in common) as they’ll automatically pass to the surviving owner.

It’s important to know that assets held in a family trust or private company are not your assets and can’t be left in your will. In this case, it’s important to get legal advice about your role in the family trust or your shareholding in the company.

Superannuation may or may not form part of your estate. Whether or not it does depends very much on the terms of your industry or retail super fund or self-managed super fund and the existence of any binding or non-binding death benefit nomination.

It’s important to get legal advice regarding your superannuation benefits during will and estate planning as they can often be the largest or one of the largest assets of your estate.

Asset division for will and estate planning

In your will, once your debts have been paid, you can direct how the remaining assets should be divided between one or more beneficiaries.

There are a number of ways you direct the distribution of estate to beneficiaries:

  • You can give specific assets to a beneficiary
  • You can leave specific amounts of money to a beneficiary
  • You can divide your estate into shares and leave those shares to a variety of beneficiaries in whatever percentages you wish

How to provide for pets in your will

We understand that your pet is a cherished member of your family that you’re likely to consider during will and estate planning, but when it comes to their legal status, pets are considered property.

While you can’t leave your estate to your pet, you can leave your pet to a beneficiary of your choice, and make sure that person will have enough funds to maintain your pet’s health and quality of life.

Who can be an executor of a will in SA?

During will and estate planning, people commonly appoint their partner with a substitute executor or executors such as children. It’s important to have a substitute executor of a will in SA, in case your first choice is unable or unwilling to act on your behalf due to illness, death or a change in your relationship.

When appointing two or more executors, careful thought should be given to whether or not they'll work well together. In cases of conflict, or in cases where there isn’t any person that’s suitable, professionals such as lawyers or accountants can be appointed to be your executor.

Appointing the executor of a will in SA

In SA, the executor of a will is authorised to deal with your estate when you die. They have very broad powers to decide whether an asset is to be sold or transferred in its current form to a beneficiary, as well as deciding the manner of any sale.

For example, your executor (in the absence of any specific direction) can decide whether to transfer your house to one or more beneficiaries or if selling, can decide whether the sale is by auction or private sale.

What is an advance care directive?

A crucial part of will and estate planning, an advance care directive is what allows you to appoint one or more substitute decision-makers to make decisions regarding your future care and health care. Your substitute decision-maker and health practitioner must follow your directions, and they can’t give health care treatment that’s contrary to your directions.

When should I update my will?

Generally, you should update your estate will planning in the following circumstances:

  • You enter into a new relationship: Registering a domestic partnership or marriage will completely cancel your will
  • Births and deaths;
  • Estrangements with friends or family;
  • Changes in your assets that warrant a change to your will;
  • Even if none of these events have occurred, it’s good practice to review your will at least every five years to ensure it correctly expresses your wishes.

What is a mutual will?

If you’ve got a blended family, balancing the interests of your spouse and each of your children can be overwhelming. Contracts for mutual wills exist to stop your surviving spouse from changing their will to disinherit your children (their stepchildren) after your death or without their knowledge.

Divorce and estate planning

Will and estate planning might not be the first thing you consider following a separation, but a marriage or de facto relationship breakdown can have a severe impact on how your will may be executed.

Section 20 of the Wills Act 1936 states that marriage or the registration of a de facto relationship revokes your will, and following a divorce or deregistration, the same act removes your former spouse from your will. However, this doesn’t apply if you have separated from your spouse or partner before divorce or deregistration.

Want to learn more about divorce and estate planning? Get in touch with our wills & estates lawyer team.

What are the grounds for contesting a will in South Australia?

Each state has its own will and estate planning legislation. In SA, people left out of a will or those who haven’t received adequate maintenance have grounds for contesting a will – and the full list of people who can contest your will may surprise you.

If you want to know how to stop someone from contesting a will in Australia or believe that you have grounds for contesting a will in SA, it’s important to get legal advice early on, as sometimes urgent action is required.

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Wondering where to store a will?

In the event of your death, it’s vital that your loved ones can easily access the documents relevant to your will and estate planning: wills, powers of attorneys, advance care directives and other testamentary documents.

When you complete a will with Johnston Withers Lawyers, we’ll store your original will inside our fire-rated deed safes free of charge and register your will with the Law Society of South Australia Will Registry.

These documents are available to you at any time upon request, and we’ll provide you with a copy to store at home, too.

We’re here to help

If you’d like to discuss will and estate planning, we’re here to help guide you through the process.

Our team of lawyers in Adelaide, Salisbury and regional SA are proud to have helped thousands of people make sure their loved ones are provided for after their death.

When experience matters, we’re here to help you, too.

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The content of this article is intended to provide a general guide to the subject matter of will and estate planning. Specialist advice should be sought about your specific circumstances.

Rosemary Caruso Johnston Withers Lawyers


Rosemary Caruso


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