Frequently Asked Questions

A Will is a legal document that expresses your wishes regarding the distribution of your assets and the care of your minor children. It also appoints an executor – someone who manages your property until its final distribution.
If you die without a Will, your assets will be divided between family members according to intestacy laws in your state. This means that there is no guarantee that your wishes will be carried out, as the decisions about your assets will be in the hands of judges or state officials, rather than your loved ones.

You should have an up-to-date Will if you:

• have property and other valuable assets;
• have children;
• are married, in a de facto relationship, recently separated or divorced; or
• have a blended family.

It’s important to make a Will today. It’s about being prepared, as an unexpected death in the family or a sudden illness or disability can happen at any time. Making a Will is a crucial preparation, despite this, around half of us will fail to leave a Will, according to the Australian Securities and Investment Commission. Make a Will as soon as possible to avoid putting stress on your family during this difficult time, or opportunistic Family Law claims.

As your personal situation changes during your lifetime, such as new relationships, starting a new business or acquiring property, your Will needs to be updated to reflect your wishes due to these developments. We recommend reviewing your Will every five years or right after any of the following circumstances:

• if you marry, separate or divorce;
• if you have children (including adopted or foster children);
• if you purchase a property; or
• if you start or a purchase a new business.

If you’ve created your Will with Will Genie and then find that you’d like to make changes to it, just get in touch and we will assist.

If you are over 18 years of age or older and you are of sound mind, then you can make a valid Will. If you are a minor (a person under 18), you cannot make a valid Will.

After creating a Will through Will Genie, you need to make it legally binding. You will need to comply with the following formalities:

• the Will must be signed by you (the willmaker) in the presence of two witnesses – they need to be present at the same time and need to be over 18 years of age and of sound mind;
• you and your two witnesses must sign on the bottom of each page and on the last page of the Will;
• you cannot alter the Will after it is signed; and
• your two witnesses should not be either the executor or beneficiary under the Will.

Note: Temporary laws have been introduced to make signing of documents easier during COVID-19. These laws differ from state-to-state. If you are unable to sign your Will in person, we suggest speaking with a lawyer in your State/Territory who can guide you as to the formalities for signing.

The person making the Will is known as the “Testator”. Only an individual 18 years of age or older who is of sound mind can make a valid Will.

The executor is the person appointed by you to carry out your wishes after you pass away. You must appoint an executor.

The executors are responsible for:

• applying for probate (a court order allowing the Will to be administered);
• notifying the beneficiaries of their entitlements;
• gathering and distributing the assets in accordance with the Will;
• ensuring that the testator’s debts, taxes and funeral expenses are paid;
• managing any assets that are held on trust for beneficiaries pursuant to this Will until those trusts vest; and
• preparing the related accounts and tax returns.

A guardian is an adult who is appointed by you to look after any minors after you and your partner pass away. This means that you should not choose the other parent of your children to be the guardian.

The guardian will be responsible for making decisions regarding the day-to-day control and care of your children, including decisions about their upbringing, education, health and welfare.

A “beneficiary” is a person who will receive assets or entitlements under the Will. For example, these assets or entitlements can be a share of the general estate, a specific gift of money, the right to live in a property, etc.

Your Will never expires. However, your Will is automatically revoked when you marry, unless it was made in contemplation of marriage. Your previous Will is also revoked when you create a new Will.

You should store the original copy of the executed Will in a safe place where the executors/trustees will be able to locate it.

A trust is a common and powerful structure where the “legal” and “beneficial” ownership of an asset are separated. The trustee has official legal title to the asset but holds the asset for the benefit of the beneficiaries. Income earned from the assets is passed to the beneficiaries via the trustee.

A discretionary trust is a type of trust where the beneficiaries have no fixed interest in the assets – whether or not a particular person can benefit under the trust is entirely discretionary to the trustee. Many people have a “family trust” that is set up as a discretionary trust.

A testamentary discretionary trust is a special type of discretionary trust that is created pursuant to a person’s Will. The trust is constituted after the will-maker passes away. Instead of passing the assets directly to the beneficiary, the executor puts the assets into a discretionary trust. The intended recipient becomes a beneficiary under the trust and can control the identity of the trustee.

Streaming means passing income earned from the trust assets through the beneficiaries via the trustee and doing so in the most tax-efficient way possible.